Written by Meredith W. Barnette, Esq., Partner.
The results of the 2024 election could have a long-lasting impact on the United States immigration system.
The race will pit current Democratic Vice President Kamala Harris against former Republican President Donald Trump, with election day set for Tuesday, November 5.
The two candidate have starkly different views on immigration, and with the impending change in administration, it is prudent for employers to proactively prepare their businesses, immigration programs, and employees, and begin taking action.
Summary of Kamala Harris’ immigration policies
Democratic nominee Kamala Harris currently serves as Vice President under current President Joe Biden. Overall, the Biden administration has been relatively positive for employment-based immigration and has demonstrated a more collaborative approach with business immigration attorneys and advocates in some areas.
Harris and Vice-Presidential nominee Tim Walz (the current governor of Minnesota) are expected to continue the immigration policies of the current administration. Their campaign website reads:
“Vice President Harris and Governor Walz believe in tough, smart solutions to secure the border, keep communities safe, and reform our broken immigration system. As Vice President, she supported the bipartisan border security bill, the strongest reform in decades. … As President, she will bring back the bipartisan border security bill and sign it into law. At the same time, she knows that our immigration system is broken and needs comprehensive reform that includes strong border security and an earned pathway to citizenship.”
Some of the immigration policies implemented by the current administration include:
“Keeping Families Together” initiative
In addition to the “earned pathway to citizenship” mentioned on her campaign website, Harris will likely continue to advocate for and attempt to implement the “Keeping Families Together” initiative, which was introduced by President Joe Biden this summer.
That policy allows certain undocumented individuals who are married to U.S. citizens, as well as their children, to apply for legal permanent residency via “Parole in Place,” provided they meet all eligibility criteria. The program began accepting applications in mid-August but was quickly blocked by the courts.
As of the publication of this white paper, USCIS could continue to accept applications for the program from applicable foreign nationals yet was blocked from adjudicating those petitions.
Reduced requests for evidence and denials; General increase in cooperation
Requests for evidence (RFEs), Notices of Intent to Deny (NOID), and overall denials increased during the first Trump administration. Those numbers, however, have noticeably decreased during the Biden administration from 2021 to the present. Immigration attorneys and advocates are hopeful that this trend will continue in a Harris administration.
On a similar note, overall cooperation between The Department of Homeland Security (DHS), as well as USCIS, and employment-based immigration attorneys and advocates has seemed to increase under President Biden.
USCIS director Ur M. Jaddou as well as other agency officials have attended American Immigration Lawyers Association (AILA) meetings and conferences during her tenure, while some of the Biden administration’s policies have been finalized after receiving input from relevant immigration counsel and advocates. This is another trend that may continue if Harris is elected President.
Online filings
USCIS has allowed for online filings of several immigration forms, including the Form I-129, Petition for a Nonimmigrant Worker for specific nonimmigrant visa types, during the Biden administration. Although there have been some minor tech-related issues, online filings as a whole have streamlined processes and generally made it easier to apply for immigration benefits, with the expectation that online filings will continue to expand to other visa types and forms.
It is likely that very few, if any, new forms will move to online filings under a second Trump administration, and it is even possible they could do away with online filing all together.
H-1B registration changes
The Biden administration made some significant changes to the H-1B registration process and lottery during their time in office, and it is reasonable to assume those adjustments would remain in place if Kamala Harris is victorious in the 2024 election.
One such change was issuing a final rule related to the H-1B registration process which took effect for FY2025 and specified that each cap-subject beneficiary was only registered for the lottery once, regardless of how many registrations were submitted in their name. The change ensured that each beneficiary had the same odds of selection and prevented organizations from misusing the registration system by filing multiple registrations for a single beneficiary.
Further, the rule allowed USCIS the ability to deny or revoke H-1B petitions where the “underlying registration contained a false attestation or was otherwise invalid.” Under the new rule, USCIS can also rescind or reject an H-1B petition if it finds the registration fee was “declined, not reconciled, disputed or otherwise invalid.”
The new rule also permitted some filings “with requested start dates that are after Oct. 1 of the relevant fiscal year, consistent with current policy.”
It is unclear if USCIS would continue to pursue publication of an additional rule on the H-1B registration process under a Harris administration.
Further, USCIS debuted “organizational accounts” for FY2025 H-1B cap filings, as well as cap-exempt H-1B petitions. Under the organizational accounts, multiple members of an organization, including both business and legal representatives, can work together inside the organizational account portal to complete the H-1B registration; the Form I-129, Petition for a Nonimmigrant Worker and the associated Form I-907, Request for Premium Processing Service. The H-1B petitions and the premium processing request can be filed online via the organizational account.
The introduction of organizational accounts was praised by employment-based immigration advocates, as it offered a major improvement for collaboration between employers and their legal representatives. The Harris administration is expected to leave that program in place if they are elected.
Asylum policies
Biden implemented a policy in the summer of 2024 which restricted access to foreign nationals who were seeking asylum on the southern border. Specifically, that policy, issued through a proclamation, made it so foreign nationals would “generally be ineligible for asylum, absent exceptionally compelling circumstances” if they “cross the southern border unlawfully or without authorization.”
“These measures are in effect until 14 calendar days after there has been a 7-consecutive-calendar-day average of less than 1,500 encounters between the ports of entry,” a fact sheet about the proclamation from the DHS read. “The measures would again go into effect, or continue, as appropriate, when there has been a 7-consecutive-calendar-day average of 2,500 encounters or more.”
Many immigration advocates criticized the measure, including the American Immigration Lawyers Association.
Biden also put in place a number of other rules, regulations and policies related to immigration at the border. Harris said in late September she would continue to enforce these policies if she was to become President, and would make some even more stringent than when they were first introduced by Biden.
Summary of Donald Trump’s immigration policies
Republican nominee Donald Trump previously served as President of the United States from January 2017 to January 2021. Trump’s policies during his time in office generally restricted entry to the United States and led to increased scrutiny of applications across the spectrum of employment, family, and humanitarian based immigration petitions. The restrictions and increased scrutiny generally resulted in delays in receiving work authorization, and an uptick in denials of certain case types.
Trump has indicated during the run-up to the 2024 election he will take up similar stances, and will likely implement the same, or similar, policies related to immigration if he was to win a second tenure. Some of those policies included:
Buy American, Hire American
The Buy American Hire American (BAHA) executive order was signed by Trump early in his initial term in the White House. The goal of the policy aimed to “create higher wages” and employment rates for U.S. workers and protect their economic interests “by rigorously enforcing and administering immigration laws.”
BAHA also directed the Department of Homeland Security, in coordination with other agencies, “to advance policies to help ensure H-1B visas (were) awarded to the most-skilled or highest-paid beneficiaries.”
Many analysts believed BAHA stifled global mobility and access to talent. Employers certainly felt the effects of the executive order during the four years Trump was in office. BAHA resulted in an increase in Requests for Evidence (RFE) issued after filing a petition with USCIS; an increase in petition denials, especially for H-1B and L-1 visa petitions; and excessive delays in case adjudications.
President Joe Biden revoked the BAHA executive order shortly after he took office in January 2021. Trump could look to put Buy American Hire American back in place or sign a similar executive order if he is elected in 2024.
Public charge rule
Under the Trump administration, the Department of Homeland Security put into place a much more extensive and detrimental interpretation of the “public charge” rule, which took effect near the end of their time in the White House. The rule required visa and green card applicants to show they would not become a public charge in the U.S. and generally required all applicants, including employment-based applicants, to provide extensive documentation proving this (tax returns, bank statements, pay statements, insurance benefits, mortgage documents, etc).
Multiple federal judges originally blocked the rule in late 2019, but the Supreme Court lifted those temporary injunctions while those legal challenges continued. USCIS then implemented the extensive regulations for determining whether a foreign national would be deemed inadmissible to the U.S. based upon the likelihood of becoming a public charge at any time in the future.
The Biden administration vacated the Trump interpretation of the “public charge” rule in March 2021 and reverted back to applying the statute consistent with the 1999 Interim Field Guidance, a much less strict interpretation of the regulation which has not required such burdensome documentation.
DACA
Trump attempted to end the Deferred Action for Childhood Arrivals (DACA) program in the first year he was in office during his initial term.
Since then, the DACA program has been impacted by various court rulings. As of the time of this white paper’s publication, applications from those already in the program can continue to be adjudicated by USCIS. However, because of the ongoing court rulings, the Biden administration has not been able to process initial applications for DACA since July 2021.
It is reasonable to expect that Trump could attempt to end the program in its entirety again, and likely would not defend it in court against other potential legal challenges.
Travel bans
One of the signature policies of Trump’s initial administration was the implementation of a travel ban in 2017.
The measure was officially implemented as the Presidential Proclamation entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” and included 13 countries by the end of Trump’s time in the White House.
Biden overturned that Presidential Proclamation from Trump on January 20, 2021, his first day in office. Trump could reinstate that proclamation, or sign something similar, if he takes office again in 2025. If so, it is expected that foreign nationals will either experience significant delays or bars from entering the United States.
How employers can prepare before and after election
Either change in administration has the potential to impact employers and their employees. Employers should consider taking the below actions in order to prepare for a change in administration in late January 2025.
— Initiate green card filings as soon as possible for as many applicable employees as practicable by the end of the year, especially those who may be eligible for the National Interest Waiver (NIW), or another similar immigrant or nonimmigrant visa type. The Biden administration introduced new guidance related to NIWs in 2023, which opened the door for green card options for many STEM graduates. Under a new administration, this guidance could be reversed or tightened, eliminating a pathway to permanent residence, and ultimately citizenship, for qualified foreign nationals.
— Use premium processing whenever possible for all immigrant and nonimmigrant forms and applications that are eligible so that a decision is received on the case as soon as possible. This may avoid some anticipated case challenges if the Trump administration is elected, such as prolonged delays in adjudication, a more likely chance of an RFE and/or an increased rate of outright denials.
— Identify any and all employees who are currently located in countries that could be impacted if a new travel ban takes effect and attempt to bring them to the United States. Employers should also prepare a travel advisory for all employees on visas in the company, warning against travel to those countries in case a ban is issued while they are abroad.
— Update the company’s protocols for site visits from the Fraud Detection and National Security Directorate (FDNS) and prepare employees and leadership teams about the best way to handle these visits if they happen. It is expected that, under a Trump administration, these site visits will significantly increase again, as they did under his previous administration.
— Audit I-9 compliance programs and ensure all Form I-9 records are accurate and compliant with federal immigration law. For the same reason mentioned above, it is expected that a Trump administration will result in an increase in I-9 audits and enforcement penalties.
— Reevaluate company positions and immigration petitions and comply as much as possible with “Buy American Hire American,” in case it is implemented again.
— Develop a business plan for any and all international relocations, ideally by the end of 2024. A clear communications plan should also be established so that information can be distributed to applicable foreign nationals if policy changes occur with little notice. If Trump is elected, it is anticipated that there will be increased scrutiny on applications; visa delays and denials; and travel bans that would all impact employers’ ability to transfer and relocate employees to the U.S.
— Brief managers and other leadership groups about the impending change in administration, its potential impact on mobility, and the importance of developing backup and/or contingency workforce plans.
— Analyze current policies about employee relocation because of gaps in employment authorization that may occur if there are timing issues, backlogs or denials by/at/from USCIS (for example, if an employee must depart the U.S. while awaiting a decision on a benefit from USCIS, it may benefit the company if its policy allows the employee to temporarily work abroad). Non-U.S. work site locations for top talent should also be evaluated, with serious consideration given to the risk tolerance for relying on digital nomad visas.
— Revisit vendor resource management (third party contractors) and any potential support that could be offered for their foreign nationals in need of visa sponsorship.