Donald Trump has been projected as the winner of the 2024 Presidential Election.
During his first term in office from 2017-21, Trump’s immigration policies 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. Some of those policies included The Buy American Hire American (BAHA) executive order; a much more extensive interpretation of the “public charge” rule; the implementation of a travel ban; and attempts to end the DACA program.
Trump indicated during his campaign he was planning to take similar positions, and would likely implement the same, or more stringent, policies related to immigration during a second term.
While it is not exactly clear at this time which specific immigration policies Trump will enact in his next term, employers should consider taking the below strategies to proactively prepare before Trump takes office again on January 20, 2025.
Please note: The below is not a comprehensive list of steps employers should take to prepare for a second Trump administration. Employers should consult with experienced immigration counsel to analyze the best options, policies, and procedures for their specific company.
- Initiate green card filings as soon as possible for as many foreign national employees as possible 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 2022, which created more green card options for many STEM graduates. This guidance will likely be reversed or tightened, eliminating a pathway to permanent residence, and ultimately citizenship, for qualified foreign nationals.
- File as many Prevailing Wage Requests for employees in the Permanent Labor Certification (PERM) process with the Department of Labor as soon as possible. The DOL issued an interim final rule late in the first Trump administration that would have significantly increased the calculation of prevailing wage levels. That rule was vacated by a federal judge, but Trump could attempt to enact a similar policy in his second term.
- 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 challenges such as prolonged delays in adjudication, a more likely chance of an RFE and/or an increased rate of outright denials, which were much more common during the first Trump administration.
- Identify employees who could be impacted if a similar travel ban put in place during Trump’s first term goes into effect. The countries affected by that ban were: Eritrea, Kyrgyzstan, Iran, Libya, Burma (Myanmar), Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela and Yemen. A new ban could include those countries, and potentially others, as well.
- Warn employees with expired visas to avoid unnecessary international travel after January 20, 2025. The previous Trump administration issued a ban on the issuance of certain visas by the U.S. consulates, leaving many people stranded outside the U.S. A similar ban may go into effect under the new administration.
- Update protocols for visits from the Fraud Detection and National Security Directorate (FDNS) and prepare employees and leadership teams about the best way to handle them if they were to occur. Similarly, I-9 compliance programs and records should be audited to ensure they are accurate and compliant with federal immigration law. These site visits and I-9 audits are expected to significantly increase again during Trump’s time in the White House, as they did under his previous administration.
- A communications plan should also be established so that information can be distributed to foreign nationals if policy changes, bans, or executive orders are issued with little notice, as we saw under the previous Trump administration.
- Plan and prepare for gaps in employees’ work authorization that may occur if there are timing issues, backlogs or denials 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.
Foreign nationals should take the following steps to prepare for the change in administration:
- Consult with experienced immigration counsel to mitigate risk associated with their current status and a second Trump term, as well as to discuss other visa options and eligibility, and any other questions, concerns or important information to know.
- If you do not possess a valid visa or you were born in one of the “Muslim ban” countries, avoid international travel after the Jan. 20, 2025, inauguration. The travel bans put in place during Trump’s first term in the White House went into effect quickly, which caused many foreign nationals who traveled during that time period to be stuck in limbo.