Discretionary programs such as humanitarian parole are just that: discretionary―and can be eliminated fairly quickly and easily.

The stated goals of Donald Trump and the Republican Party are to restrict both humanitarian immigration and legal business immigration. The party’s 2024 platform was discussed in more detail in our blog post, “Business Immigration Planning for 2025.” Now that Trump has been elected as our next president, here are some actions businesses can take between now and January 2025 to manage, or even minimize, the impact of those likely restrictions on foreign national employees.

Accelerate into 2024 the Filing of Petitions with U.S. Citizenship and Immigration Services (USCIS)

Greater scrutiny and delays in the adjudication of petitions by USCIS, including an increase in requests for evidence (RFEs) and denials, are expected under the new administration. The current policy granting deference to prior USCIS adjudications is likely to be revoked or at least revisited (as occurred during the prior Trump administration). Specifically, the 2017-2021 Trump administration tightened adjudicatory standards and fostered a culture of "no" in immigration benefits adjudication.

File Renewals of Employment Authorization Documents (EADs) as Early as Possible

EAD/work authorization cards granted for humanitarian and business-related reasons are likely to be restricted or eliminated. Programs likely to be negatively affected during the next administration include:

• Deferred Action for Childhood Arrivals (DACA)
• Temporary Protected Status (TPS)
• Automatic extensions for certain EAD categories while renewal applications are pending
• Humanitarian parole programs (for example, for Ukrainians)
• International Entrepreneur Parole (IEP) program
• H-4 (spouse of an H-1B professional worker) EAD

Some of these EADs―such as H-4, IEP and DACA―are covered by regulations and can therefore not be eliminated immediately; the regulations have to be amended after a mandated notice and comment period. The administration can, however, slow down the adjudication of applications and eliminate the automatic extension of EADs while renewal applications are pending.

Discretionary programs such as humanitarian parole are just that: discretionary―and can be eliminated fairly quickly and easily. In the past, when such programs have ended, EAD holders have not had their current EADs revoked. Rather, they just become ineligible to renew their EADs.

Have Employees Consider Accelerating International Travel into 2024 and Exercise Caution When Considering International Travel in 2025

Greater scrutiny and additional delays are also expected at U.S. embassies and consulates adjudicating visa applications and with the immigration officers at ports of entry. The Republican Party platform targets “foreign Christian-hating Communists, Marxists, and Socialists” and “jihadists and jihadist sympathizers” for strict vetting, and supports “deport[ing] pro-Hamas radicals” and “revoking Visas of Foreign Nationals who support terrorism and jihadism” as part of an effort to combat antisemitism. Based upon this platform, we expect that additional resources will not be dedicated when needed as additional vetting of the process for visa applicants is instituted, and this will again result in much slower processes at U.S. consular posts.

The Republican Party platform also calls for reinstating the earlier Trump travel ban, most likely some version of the 2017 Presidential Proclamation 9645. This presidential proclamation targeted countries for their failure to share adequate information related to public safety and terrorism about their nationals. During the first Trump presidency, U.S. employers of nationals of these countries (including Chad, Iran, Libya, North Korea, Syria, Venezuela and Yemen) had employees who were stranded outside of the United States. Based upon the announcements already made during the campaign, we expect similar disruptions in a second Trump presidency.

Those looking to renew visa stamps may therefore want to consider scheduling an appointment and applying for their visas in 2024.

Those considering travel on advance parole (AP) documents in 2025 may want to reconsider or postpone their travel plans until there is greater clarity on the administration’s plans to restrict or eliminate the use of AP for certain groups of people. Those who are particularly at risk are individuals who have been granted DACA and TPS status.

Prepare for Possible Worksite Raids, Enforcement Actions and Investigations

If the Trump administration keeps to its promise to “begin the largest deportation program in American history,” it almost certainly will involve worksite raids and may involve more frequent I-9 enforcement actions and investigations against employers.

Employers may therefore want to conduct internal audits now to make sure that their workforce is prepared in the event of a raid and that I-9 and E-Verify compliance is well documented.

Manage Expectations and Revisit Staffing Plans and Budgets for 2025 and Beyond

In the name of protecting U.S. workers, the 2017-2021 Trump administration made multiple attempts to issue regulations that, among other things, changed how the prevailing wage was calculated in order to increase minimum compensation levels for the H-1B and E-3 (specialty occupation) temporary work visas, and in relation to the PERM green card process. It’s reasonable to assume that these efforts would resume in a second Trump administration.

Internal stakeholders should be informed regarding greater unpredictability in adjudications and likely increases in processing times, RFEs and denials beginning next year.

In addition, in light of the delays and roadblocks to business immigration likely to occur under Trump’s second administration, employers will undoubtedly incur additional costs, including travel expenses and increased legal fees due to RFEs and appeals of denials, to address issues faced by their foreign national employees.

Employers Heavily Dependent on Foreign Talent May Consider Relocating Mission-Critical Operations with a Large Percentage of Foreign Employees Outside the United States

Having operations in a country with more predictable business visa requirements can help mitigate risk and foster business continuity.

However, businesses should also plan for potential disruptions and delays in the global mobility of U.S. workers abroad, who may face added challenges obtaining visas and work permits in countries that reciprocate in response to Trump’s policies.

For More Information

If you have any questions about this Alert, please contact any of the attorneys in our Immigration Law Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.