With every Presidential administration change, the immigration status quo hangs in the balance. The President has quite expansive authority in the space of business immigration, including ability to issue proclamations, executive orders, and direct policy changes for the Departments under executive control. This includes the agencies that directly affect an employer’s ability to recruit, onboard, and retain personnel: the Department of Homeland Security (ICE, USCIS, etc.), Department of Labor, Department of Justice, and Department of State.
We know from experience and expressed plans that a new Trump Administration is likely to usher in wide-sweeping changes affecting U.S. Employers. There is not much by way of specific plans that are spelled out from the incoming administration at this time, but we expect more details in the coming weeks. Knowing this, some ways U.S. Employers should consider to prepare for an administration change in January 2025 are:
Plan for Delays
We saw in the previous Trump Administration major delays in case processing times. Expedited processing eligibility was removed at some points, and USCIS was delayed in issuing decisions on cases that were not eligible for expedite.
Recommendation: Consider filing extensions as early as possible. Consider expediting cases you can now and not waiting for ability to add expedite on at a later time.
Plan for Major Challenges: Requests for Evidence, Notice of Intent to Deny, and Increased Denial Rates
Data from 2017-2021 shows the H-1B RFE rate soared to over 60% and denial rate skyrocketed up to nearly 25% of filings.
Recommendation: Visit and revisit your case strategies. Anticipate a request for evidence with your initial filings. Consider gathering (not filing with every case initially) data to answer potential requests for evidence, including evidence of company hiring practices, DOL data, and competitor data to support your H-1B filing
Anticipate International Travel Issues
Under the previous Trump Administration there were travel bans from several countries. There were also very long wait times at consulates and challenges with visa issuance. We could see the travel bans reemerge and the list of countries grow.
Recommendation: Always be aware when your employees are traveling internationally and plan before they leave the U.S. They should have a valid visa in their passport to return OR be traveling with an employer consular package and a visa appointment already made in their home country for the business to have more planning ability on when they will return
Prepare for your workers on Employment Authorization Documents on DACA, Temporary Protected Status, and Others to Potentially Lose Work Authorization Eligibility – Review Available Options NOW
President Trump’s previous administration worked hard to dismantle DACA and Temporary Protected Status designations for several countries. The effect of this would be for millions of workers to lose authorization to remain in the U.S. and lose authorization to continue working in the U.S.
Recommendation: There may be a way around relying on DACA or TPS work authorization for these workers through a family or employment-based green card. The company should consider looking into temporary work visa option (TN or H-1B, e.g.) or a permanent job offer for these individuals in the chance they may be eligible to change or adjust status.
Expect an Audit – from ICE on your I-9s, from DOJ on a discrimination claim, from USCIS on your work visas/employment based green cards, from DOL on your Labor Certification Application/PERMs
The previous Trump Administration saw an increase of audits and investigations by Federal authorities in every possible area.
ICE I-9 audit investigations quadrupled under the Trump Administration with the poster child case of an employer paying $95 million in fines!
USCIS Fraud Detection and National Security Officer Audits increased, and we saw more site visits and employer investigations in the H-1B program than ever
DOL Audits on PERM 9089/Labor Certification Applications grew under Trump Administration – tightening the administration’s grip on the ability to get a job certified to move forward with green card process.
Recommendations:
Review your onboarding, hiring system. Hire an independent, outside auditor to review your I-9 compliance system to make sure it comports with regulations. Correct practices causing errors or gaps in compliance.
Review your H-1B/LCA Public Access Files. Hire an independent, outside auditor to review your Public Access Files to ensure H-1B compliance.
Anticipate DOL challenges on your PERM filings and plan ahead. Review your DOL 5 Year Audit Files for PERMs and ensure all required documents are present and accounted for.
There may be other changes we have not anticipated or changes that were blocked by federal courts during the last administration to rear their head. For example, the Trump Administration attempted to drive prevailing wages to astronomical levels (some Level 4 wages for jobs were $280,000 for Software Developer, for example).
Overall, we recommend Employers plan ahead. Take stock of your company’s recruitment, onboarding, and retention systems. If your house is in order, you can be ready for the challenges to come and face them head-on.
To learn more, please join us for a live training on: What the New Administration means for Corporate Immigration Compliance and International Personnel Strategy. You can sign up HERE!
Business Immigration Lawyer
For H-1B, TN, or Employer-Driven Green Card training, explore training at Corporate Immigration Compliance Institute
The information on this website is for general information purposes only, it is not legal advice applicable to a specific situation. Viewing it does not create an attorney-client relationship.
