The Top Five Areas of Business Immigration Likely to be Impacted by and How to Prepare for the Second Trump Administration

This article summarizes key take-aways from our December 3, 2024 webinar titled Business Immigration – What to Expect Under a Second Trump Administration. We focused on what the first Trump Administration proposed or enacted, how we can use that as a roadmap to predict what might happen during the second Trump Administration, and what employers can do to prepare.  

1. General Adjudication Changes

Overall, we expect changes to again be implemented that lead to a general slowing of case processing and adjudication through higher rates of Requests for Evidence (RFE); longer wait times and higher scrutiny of visa applicants at U.S. Consulates and Embassies; and a potential suspension of premium processing during H-1B cap season.

To address some of these changes, we first recommend an overall analysis and understanding of who your employees are and their sponsorship needs. For new candidates requiring sponsorship, partner with your Recruiting and Talent Acquisition teams to ensure the candidate’s qualifications align with the sponsorship requirements, and ensure hiring managers are aware of a potential increase in processing times. Submitting cases earlier can minimize the impact of increased processing times and potential RFE preparation and response adjudication.

2. Spouse Work Authorization

The Administration may again split the review of dependent spouse status (ex: H-4, L-2S, E-3S, etc.) and work authorization applications from the primary employee (ex: H-1B, L-1, E-3, etc.). This will again delay the adjudication of spouse applications which could result in a gap in spouse work authorization, as well as increased employee anxiety. The Administration may again propose regulations to remove work authorization altogether for H-4 spouses who are married to a primary H-1B employee with an approved I-140.

For H-4 work authorized employees, consider alternative options, such as H-1B lottery registration.

3. Executive Action

President Elect Trump has made it clear that we should expect some major executive action on immigration within the first week of his second administration. 

The first immigration Executive Order issued in 2017 was a travel ban that prevented passport holders from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States. An updated version of this could be implemented for the same or more countries. Another early Executive Order was a hiring freeze, which resulted in staffing issues at the Department of Homeland Security, including USCIS, that impacted case adjudications; and staffing issues at the Department of State’s US Consulates and Embassies which impacted visa issuance. We may also see another version of the Buy American, Hire American Executive Order, which will have a broad impact on the interpretation of existing business immigration law.

We expect the first executive action to focus on the southern border, but the implications could be broader. Companies should consider consistent communication regarding international travel, including policies regarding travel with company data on mobile devices and laptops, avoiding travel to specific locations, and returning to the U.S. from international travel prior to Inauguration Day.

4. Humanitarian Options

We expect a walk-back for some humanitarian options, including Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS), as well as changes to Refugee and Asylum programs. This could mean a gap in U.S. work authorization for individuals that currently benefit from these designations, along with an overall increase in uncertainty and anxiety amongst employees.

For these work authorized employees, consider alternative options, such as H-1B lottery registration.

5. I-9 Compliance

Employers are liable for ensuring their employees are authorized to work through the I-9 verification program. Ensuring you have a robust I-9 program and system for re-verification will be critically important if enforcement increases at the same time humanitarian programs end as people who are authorized to work now may lose their work authorization. To address some of these changes, we recommend regular audits of the company’s I-9 and immigration compliance records.

If you have any questions regarding what to expect and how to prepare for the immigration changes that may impact you or your employees, please contact your local Quarles attorney, or:

• Maria Kallmeyer: (312) 715-5009 /  maria.kallmeyer@quarles.com
• Nneka Umeh: (312) 715-5124 /  nneka.umeh@quarles.com
• Libby Glass: (202) 780-2664 / libby.glass@quarles.com