Since former President Donald Trump won re-election, there has been a flurry of speculation about what to expect during his second administration. While there is much we don’t know, his first presidency offers clues regarding his likely outcomes concerning business immigration. We expect actions will be swift. Businesses, academic institutions, religious organizations, and individuals that hire and maintain foreign talent in the U.S. on temporary visas, such as H-1B, L-1, E-1/E-2, and TN, are expected to be most affected.

UB Greensfelder is the go-to source for businesses that employ and seek to retain noncitizen professionals, including hospitals, health care groups, biomedical, technology, manufacturing, banks and financial institutions, colleges and universities, firms, and religious institutions. We stand ready to help businesses navigate the upcoming changes, including assisting with pre-inauguration preparations.

Anticipated Immediate Changes under a Second Trump Administration on Immigration, Visa and Citizenship Policy

Businesses should expect a major paradigm shift related to immigration, including the availability and processes for employment-based visas. While we don’t know the full breadth of actions the second Trump administration will take, we do have indications of likely outcomes. Based on his first presidency and campaign promises, we can expect the following:

• Immediate and widespread use of executive orders and agency guidance to restrict employment-related visas and ramp up enforcement. We expect President Trump to (i) reinstate travel/entrance bans from predominantly Muslim countries, (ii) limit the admission of H-1B and L-1A visa holders, (iii) increase the use of “extreme vetting” of visa applicants at U.S. embassies and consulates overseas, making overseas travel for noncitizens fraught with risk, (iv) limit H-4 employment authorization for spouses of H-1B professionals, (v) restrict the issuance of student and exchange visas, including F-1 academic and J-1 exchange visitor visas, and (vi) limit the number of refugees. Each of these actions will profoundly impact businesses by making it more difficult for them to hire and retain noncitizen professionals. Additionally, restrictions on academic visas will remove a substantial revenue source for colleges and universities.

• Restrictive USCIS adjudication of nonimmigrant and immigrant visa petitions, including H-1B, O-1A/B, EB-1, and National Interest Waiver (NIW) matters. We expect USCIS to issue and re-issue guidance and regulations, leading to a stricter adjudication process for employment visas. As a result, it will be more difficult and less certain for employers to maintain key employees. This includes agency pushback through loss of deference to previous agency approval of visa petitions, Requests for Evidence (RFEs) and higher denial rates. The EB-1 and NIW categories, in particular, enable highly accomplished noncitizen professionals to enter and work in the U.S. more quickly and easily because of the significant benefit they provide to the country. Employers are well advised to develop strategies to overcome the restrictions so they may continue to hire and maintain critical professionals in shortage occupations.

• Adjudication delays. It is possible that the administration will reduce the availability of, pause, or cancel “Premium Processing,” which offers companies the option of expedited adjudication of certain visa petitions. Premium processing is often essential for businesses to attract, onboard, and retain top talent by giving businesses more control over otherwise extensive processing times for petitions. We expect the administration to add to the delay that has plagued the PERM and Consular processes.

• A robust use of the Public Charge Rule. This rule is a set of guidelines that immigration officials used during the first Trump administration, which, at bottom, required a green card applicant to prove they are not likely to rely on government resources. We expect the Trump administration to again broaden the use of the Public Charge Rule in a way that may make it too onerous and cumbersome for many employment- and family-based immigrants, including the spouses of U.S. citizens, to obtain green cards.

• Mass deportation and detention of noncitizens. Many undocumented immigrants live in mixed immigration status families, which means that even if an employee is a U.S. citizen, their spouse and/or parent may be undocumented. President-elect Trump has promised mass deportations to begin shortly after his inauguration. U.S. citizen workers and professionals may seek assistance and/or advice from their employers. Businesses should have a plan to respond to employee needs.

How Businesses Can Prepare for the Expected and Potential Changes

We expect opposition from the business community to restrictive immigration-related executive orders, agency guidance, and legislative proposals that limit the ability of noncitizen professionals to enter and work in the U.S. Still, the extent and impact of that resistance are unclear. Nonetheless, there are steps businesses can take now to prepare for potential changes:

• Move quickly on visa petitions currently in the pipeline. If you rely on noncitizen professionals in your workforce, move quickly to obtain approval for new visa petitions and extend visa petitions for professionals whose authorization is expiring soon. At UB Greensfelder, we have several tested and effective strategies that can assist employers in the process of successfully hiring, retaining and protecting their foreign talent.

• Plan strategies for keeping DACA employees in the U.S. Businesses, nonprofits and academic institutions should start strategizing ways to obtain nonimmigrant visa status for DACA employees and keep them in the U.S. UB Greensfelder can assist with evaluating potential visa and unlawful presence waiver options and help applicants move through the process as quickly as possible.

• Prepare for an enforcement-heavy climate, including internal Form I-9 audits. Businesses should prepare for the impact of enforcement actions on their workforce. In addition to ensuring compliance with Form I-9 employment authorization verification requirements, businesses should make sure they meet the H-1B wage requirements and plan for government audits. Businesses should plan for potential disruptions to their workforce if workers are detained or subject to delayed visa processing.

• Prepare for travel hassles. When noncitizen employees travel, obtaining visas overseas and/or returning to the U.S. may involve delays, including “security reviews” and sudden travel bans affecting their ability to return to the U.S. Businesses should factor in potential travel delays associated with international business travel and transfers. Further, businesses should be prepared to act, where necessary, to protect essential noncitizen professionals.

• Provide resources to your employees. Many employees are uncertain about what might be on the horizon. HR departments and legal counsel should offer resources to employees and other stakeholders. For instance, universities can host “Know Your Rights” teach-ins, or businesses can host open Q&A sessions with their employees.

• Attend a UB Greensfelder webinar. While there is uncertainty, we have been through some of this before. We have a toolkit of resources and strategies available. We frequently host webinars to keep our clients informed about the ever-changing landscape. We will be offering a series of webinars to help businesses prepare, and to help organizations respond to the administration’s actions.

UB Greensfelder Is Here to Help

We understand the worries of business owners and HR professionals who rely on noncitizen professionals in their organization, and we empathize with noncitizen professionals who are uncertain right now. We are here to help.

We can help organizations use the next two months to prepare for potential changes. We can educate HR teams and noncitizen professionals on steps they should take before January 2025 and beyond.

Once the new administration’s changes are implemented, we can help implement winning strategies to navigate those changes. We developed a systematic approach for dealing with the changes implemented by the previous Trump administration and we are ready to do so again. Additionally, we can help you respond to any challenges to noncitizen professionals’ visas in administrative and judicial forums. When visas are challenged, we have a tested and proven strategy to respond to those strategies. We are adept at obtaining waivers and strategically using exceptions to benefit our clients.

UB Greensfelder’s Immigration Law Group is closely monitoring developments and will continue to keep you updated with recommended actions via client alerts and webinars.

The information provided in this client alert speaks only to the information and guidance we have available as of the date of publication and is subject to change. This legal update was created by UB Greensfelder LLP, and is not intended as a substitute for professional legal advice. Receipt of this client alert, by itself, does not create an attorney client relationship.