By: Hector A. Chichoni, Esq.
As President-elect Donald Trump prepares to assume office, U.S. employers and companies, in almost every sector, are anticipating a significant increase in changes in immigration law and procedures. This is rightly so, given the historical precedent established during the first Trump administration (2017-2020). It is important to note that these significant, and even substantial, changes to immigration policies and procedures during the prior Trump administration were primarily based on executive orders and not on legislative action. This is important for employers and HR professionals to understand as many of the upcoming changes are likely to be based on executive orders within the first 100 days of the new administration taking office.
A brief exploration of policies and changes during President Trump’s first term summarized below should provide a glimpse into the potential upcoming changes.
The Buy American, Hire American (BAHA) order, for example, created a “de facto” change in the regulatory evidentiary standard, going from “preponderance of the evidence” to a “clear and convincing” standard. This change was extremely difficult for employers to overcome. The indirect result was longer processing times of petitions through regular visa processing, increasing from a few months to many months of waiting and disappointments.
Moreover, U.S. Citizenship and Immigration Services (USCIS), almost overnight, increased the number of Request for Evidence (RFEs) and denials. Based not on official numbers but on practitioner reports, the number of RFEs, for example, experienced a 70 percent increase and even 80 percent in L-1A and H-1Bs in some instances. In other instances, denials were reportedly multiplied and, in some L-1A, H-1B, and E-2 cases, exceeded the 25 percent mark.
Furthermore, the number of Form I-9, Employment Eligibility Verification audits which U.S. employers are mandated to implement, went up suddenly and significantly. This increase in I-9 audits, coupled with U.S. Immigration Customs Enforcement (ICE)’s ability to conduct electronic audits, presented real challenges for U.S. employers.
Last, but not least, the executive orders and presidential proclamations relating to travel bans for individuals of certain nationalities.
So what should U.S. employers and HR professionals expect beginning Jan. 20, 2025? Briefly, U.S. employers and HR professionals should expect executive orders, at least in the short term, that shall implement the following:
An increase in immigration enforcement (i.e., I-9 and E-Verify) audits and worksite visits. There will be an increase in enforcement of workplace rules related to the employment of foreign national workers. These actions will not be carried out by the U.S. Department of Homeland Security (DHS) alone.
There will also be, either jointly or individually, U.S. Department of Labor (DOL) and Wage and Hour Division (WHD) actions focusing on compliance enforcement. These actions will also include site inspections and compliance audits by ICE, particularly targeting industries with high numbers of immigrant workers – either directly or through subcontractors providing services – which rely primarily on “immigrant labor,” such as hospitality, agriculture, construction, food processing (i.e., meat packing, poultry processing, even retail bakers, etc.), and manufacturing industries to name a few.
Expect USCIS’s Fraud Detection and National Security (FDNS) unit to conduct more unannounced site visits to verify compliance with immigration law and regulations. U.S. employers sponsoring foreign nationals for status and visas authorizing employment will be affected
Expect USCIS’s increase in the vetting of petitioners, beneficiaries, and applicants, which include several mandatory actions, such as interviews of beneficiaries, background checks in the United States and overseas, biometrics, and other requirements that will create a burden in the hiring of foreign nationals.
Expect an even higher increase in RFEs, denials without prior issuance of RFEs, denial, and increase of 221(g) administrative processing issuance at U.S. consulates, lengthier processing times, and the hardening of administrative requirements that might delay the employers’ petitions and consular applications filed on behalf of foreign national employees.
A new version (or similar) of the BAHA executive order, to reflect “America First” policies. The expectation is that this new version of BAHA could be more stringent. There will be a “hardening” to USCIS’ rules and procedures. Further, the U.S. Department of State (DOS) is already increasing the scrutiny and severity of the employment-based visa application process around L-1, E-2, O-1, and others.
But there are other concerning issues, which typically run parallel to the main concerns, such as the effects that a hardening in immigration policies and procedures may have on state, and even, local “immigration” legislation (i.e., Florida, Utah, etc.). These will have an impact not only from an immigration enforcement perspective but will also create a potential burden on U.S. employers (a larger number of states are requiring the use of E-Verify).
Employers and HR professionals should expect state and local governments to pass legislation and ordinances impacting immigration enforcement, likely to align with the federal immigration enforcement plans. Further, there is a potential return, at least in some fashion, of the “287(g),” allowing ICE to partner with state and local law enforcement agencies to perform immigration enforcement duties.
The most “challenging” mistake an employer and HR professionals can make is to avoid the obvious and to ignore the expected. As the saying goes: “Now is the time” to take proactive steps and ensure compliance. U.S. employers and HR professionals cannot predict exactly how the U.S. immigration changes are going to play, but we all know that the best employers and HR professionals can do is to prepare based on a “track record.”
Often, the best preparation lies on the basics, and the basics are well-known:
Expect to receive a higher level of scrutiny, which will make it more difficult to hire and retain foreign workers.
Anticipate longer processing times.
Expect increases in Request for Evidence and denials.
Conduct I-9 and E-Verify audits to ensure full compliance.
Review and update your immigration policies.
Review and update your job classifications.
Ensure your subcontractors and service providers comply with immigration laws (to the extent it is necessary and possible).
Take all possible early actions that can prevent problems (i.e., submit petitions for extensions of status for sponsored employees six months prior to expiration to allow time and avoid possible delays).
Involve HR personnel in plans for a reduction in force to ensure Program Electronic Review Management (PERM) Labor Certification applications (and other processes) for sponsored workers are not being filed within six months of “similarly situated U.S. workers in related occupations” being RIFed, etc.
Keep your workforce informed and trained.
Be steady and constant in implementing compliance.
If you have specific concerns regarding compliance and your business immigration needs, please do not hesitate to reach out to [email protected] click here.
