Donald Trump was declared the winner of the 2024 Presidential Election in early November.
During his first term in the White House, Trump’s immigration policies generally restricted entry to the United States and led to increased scrutiny of applications across the spectrum of family and humanitarian-based immigration petitions. The restrictions and increased scrutiny generally resulted in delays in adjudication, and an uptick in denials of certain case types.
It is not exactly clear at this time which specific immigration policies Trump will enact once he takes office on Jan. 20, 2025, although he indicated on the campaign trail he was planning to take similar positions in his second term.
We spoke with Garfinkel Immigration Law Firm Senior Associate Attorney Catherine Magennis about the potential family-based immigration policies that could be put in place during a second Trump term and how foreign nationals can prepare.
Big picture, what do you think we could expect from the Trump administration related to family-based immigration once they take office?
I think it is important to emphasize that we do not know, at this time, any specific policies the Trump administration is planning to put in place after inauguration day. We do have experience with the first Trump administration, and of course, what he said on the campaign trail, but nothing specific has been released yet as far as his second term goes.
We expect the Trump administration to use the power of discretion to increase scrutiny on cases. There are many types of cases that depend on discretion, for example, any waiver case and any adjustment of status case involves the adjudicating officer to use discretion to recommend a favorable grant of the immigration benefit being sought by the foreign national.
We expect this use of discretion to be used in adjustment of status cases. (Here is the “non-exhaustive list of positive and negative factors that USCIS can consider with AOS cases)
We also want to warn those that are subject to unlawful presence bars to be aware of potential changes in policy memorandum that could impact their ability to continue to be eligible for a benefit. Currently, someone who triggered an unlawful presence bar by leaving the United States but then re-entered the U.S. lawfully can serve their unlawful presence bar within the U.S. under the current policy memorandum interpreting the law. This policy is something that could be changed under a subsequent Trump administration and would then require a foreign national to file a waiver for unlawful presence showing extreme hardship to a qualifying relative parent or spouse.
We also expect the Trump administration to try to implement mass deportation, including targeting foreign nationals with criminal records and using local police and sheriffs to report to Immigration and Customs Enforcement (ICE) on anyone detained that is not born in the U.S. We have already seen signs of this going into effect in state legislators around the U.S., including North Carolina, with the passage of HB-10.
Employers and foreign nationals should also expect increased workplace raids and I-9 audits at businesses, particularly in industries that use foreign born labor. Our immigration team is hosting a webinar on December 17 focused on “Navigating Immigration in the Second Term” and will speak to employers about I-9 compliance under the Trump administration. We also want foreign born workers to understand and know their rights in the face of a workplace raid. Unless you are detained by law enforcement, a foreign national is free to leave the property, but should only drive away if they have a valid driver’s license.
In preparing for Trump’s plan to implement mass deportation, we advise foreign nationals that do not have a valid driver’s license or work authorization document, to carry evidence that they have been physically present in the U.S. for at least two years. If a person can prove they have been in the U.S. for at least two years, then that individual should have a right to see an immigration judge before being removed from the country.
U.S. Customs and Border Protection is the federal agency tasked with patrolling the U.S. border and ports of entry. There is a federal law that states that CBP can search for people without immigration documentation within a “reasonable distance” from any external boundary of the U.S. These external boundaries include international land borders but also the entire U.S. coastline. Therefore, the amount of people that are 100 miles from the “border” can be quite large.
What do you think foreign nationals should know before inauguration day?
A president can’t change the law. So, if you’re legally eligible for a visa type or benefit, you probably will remain legally eligible for that visa type or benefit.
However, the president can interpret the law differently and issue differences in policy interpretation of immigration law. A lot of what feels like distinct law in immigration has actually been issued through memorandums and executive orders based on the president’s interpretation.
This means foreign nationals should prepare for changes in what we may have to prove to essentially meet the eligibility criteria for an immigration benefit. This doesn’t mean that you won’t be eligible, because, again, the law hasn’t changed, but what you would need to prove eligibility could potentially change and become more burdensome.
Are there specific examples of this happening during the first Trump administration?
Yes, there were many times this happened. Most notably, with the “public charge” rule.
The “public charge” rule, i.e. the requirement to prove you would not become a “public charge” in the future, has been law for quite some time. For family-based clients, for the longest time, that meant having an Affidavit of Support showing that either your sponsor or a joint sponsor had sufficient income to maintain an immigrant at above 125% of the poverty guidelines. If the sponsor’s income met that based on their household size, you were usually good on that front.
But, under the first Trump administration, we saw increased requirements like having to pull a credit report for not only adults, but also for children. We also saw proof of needing access to health insurance, which sometimes posed problems because once someone becomes a green card holder, they have access to the marketplace. But sometimes, if you aren’t a green card holder yet, and you don’t have health insurance through your employer, then you may or may not have access to health insurance. It’s something that you will get after you get your green card, but the Trump administration wanted to see it before you got your green card, so it was a bit of a Catch-22 situation.
You also needed proof of education level. In theory, if you had certain degrees, you would thus be less likely to need government assistance. We also saw that you needed to provide bank statements, and any liabilities, like mortgages, etc. It was just a significant increase in documentation to meet that “public charge” element to be able to get your green card through a family member or an employer.
What do you expect to happen related to overall processing times?
During the first Trump administration, there were many delays and extended time frames for processing applications and petitions, though the COVID-19 pandemic was also likely a factor contributing to the delays. We can likely expect processing times to slow down again during this term because the executive branch has the power to hire and fire, whom to staff, and decide how resources are placed and allocated. We are preparing and strategizing for the expected increase in delays at all of the government agencies.
Is there anything impacted foreign nationals can do to prepare for these expected increases in processing times?
Foreign nationals should consider consulting with experienced immigration counsel to evaluate whether they can file a petition before the end of the year and whether there are any strategies to take to avoid a lapse in work authorization, if applicable.
As far as after Trump takes office, litigation is a strategy we have used when processing times have gotten to the point where they are unreasonable. This was oftentimes an effective strategy during Trump’s first term, and continually thereafter.
Trump attempted to end DACA in his first administration. What could we expect related to that program moving forward?
The future of DACA is still being litigated in the federal court system and the case pertaining to the program is likely to wind up in front of the Supreme Court once again. Even before the election, the future of DACA was unclear and the Biden administration has not been able to process initial applications since July 2021 because of various court rulings. We generally recommend that those with DACA who have work authorization expiring in at least a year, or less, consider applying earlier than the normal 150 days before expiration so as to potentially increase the amount of work authorization available to them while exploring other options.
Those on DACA who are married to U.S. citizens or green card holders or have U.S. citizen parents or LPR parents should explore other family-based immigration options to legalize their status and avoid relying on DACA. Foreign nationals with DACA should consider meeting with experienced immigration counsel to discuss and evaluate any potential alternative solutions.
What other immigration programs or policies are vulnerable under a Trump administration?
The Trump administration expressed concern over the use of parole and other deferred action or temporary programs that benefit certain foreign nationals who are coming from countries experiencing national disasters, war and conflict. For example, this includes the Special Immigrant Juvenile program, the U Visa program, U for U program for Ukrainians, and Temporary Protective Status programs.
Special immigrant Juvenile Status (SIJS) is a program for children who have been abandoned, abused or neglected by one or both parents to seek lawful permanent resident status in the U.S. We expect that the policy that allows for those that have SIJS petitions approved to be placed under deferred action while they await the visa bulletin to be current to potentially be discontinued, which would cause this vulnerable population to be without work authorization as they await a lengthy backlog to apply for lawful permanent resident status.
We expect similar policy changes with the U Visa program, which is a way for victims of certain serious crimes that cooperate with law enforcement to obtain legal status in the U.S. Currently, Congress only allows for 10,000 U Visas to be issued every year and you can get work authorization after a bona fide determination that your case could be approved once the visa is available while you wait.
Likewise, we anticipate that many of the humanitarian parole programs, such as the U for U program for Ukrainians and Temporary Protected Status (TPS) may be discontinued. Foreign nationals who are currently living and working in the U.S. under one of these temporary parole or Temporary Protective Status programs should consider meeting with experienced immigration counsel to discuss and evaluate any potential alternative solutions.
Further, for those who are in the U.S. pursuant to one of these programs at risk under the Trump administration, it is important that they seek counsel on how to prepare in the event the program (and consequently their legal status) is terminated and they are detained. This is of particular importance if they have children in the U.S., and especially if the children are U.S. citizens. For example, appointing Guardianship of any children so that parents have someone who will be responsible for taking care of them if the parents are detained (who will pick up the children at school if parents are detained, etc.). Additionally, appointing a Power of Attorney is important so that you have someone responsible for accessing your bank accounts and other legal matters (housing, your belongings, etc).
Have there been any updates about President Biden’s “Keeping Families Together” initiative and will that be affected by Trump?
A federal judge struck down in mid-November President Biden’s “Keeping Families Together” initiative, which would have allowed 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.”
USCIS said following the ruling that it will not be accepting or adjudicating petitions for the program and that it will “publish additional information on how it will handle pending cases and paid application fees.” This likely means that the program will never go into effect, as it is highly unlikely it will be revived under a Trump administration.
What else should foreign nationals prepare for before Trump takes office?
Any foreign national who is traveling during the holidays should try to re-enter the country before Trump is sworn in on Jan. 20, 2025. 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.
In theory, any travel ban put in place would not impact green card holders or naturalized U.S. citizens. But, at the same time, we don’t know what they are going to look like, how they will be implemented/enforced, and we don’t know if any of them would need to be challenged in federal court.
That is why we’re recommending that if you can get back before the inauguration that you do so. That way, if these travel bans go into effect, we may know more specifics, so that we can better advise about the risks and benefits of travel.
Trump’s campaign also criticized the use of parole to allow foreign nationals to enter the U.S. So his administration may scrutinize anyone using parole to enter the United States. Anyone traveling to the U.S. under humanitarian parole or advance parole should speak with an immigration attorney to understand the risks.
Is there anything else foreign nationals should know about the change in administration?
If you’re not a naturalized U.S. citizen, it may be worth exploring the option to become one, because U.S. citizens do have more protection under the law as compared to green card holders. So, it may be worth having a conversation with experienced immigration attorney to determine your eligibility and discuss the benefits of citizenship.