Employers Face Looming Immigration Changes Under Trump Administration

Employers should prepare for major changes to employment-based immigration under the incoming Trump administration, including increased worksite enforcement, slowed-down processing, restrictions on employment-based visas, and a rollback of Biden administration policies, experts said.

President-elect Donald Trump’s 2024 presidential campaign included plans for mass deportations of undocumented workers, reversals of Biden-era actions, and the undoing of programs such as Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS), which cover hundreds of thousands of workers.

It’s expected that Congressional legislation around immigration will once again be at an impasse. But the Trump White House will likely issue a flurry of executive actions and regulatory changes to restore policies from the first Trump term that were halted by litigation or revoked by President Joe Biden, including stricter eligibility criteria for temporary work visas and employment-based green cards.

“There are things we can expect with higher certainty and things that are more like question marks,” said Julia Gelatt, associate director of the U.S. Immigration Policy Program at the Migration Policy Institute in Washington, D.C. “With higher certainty, we can expect a return to increased scrutiny of applications, a bigger focus on fraud detection, slower immigration processing, and more country-based travel bans,” she said.

“We’ll see what we saw the first time, but intensified to a new level,” said Cecilia Esterline, a senior immigration policy analyst at the Niskanen Center in Washington, D.C.

Andrew Wilson, an immigration attorney and partner at Lippes Mathias in Buffalo, N.Y., agreed that President Trump’s first term holds the answers to what to expect over the next four years. One thing that might reappear: discussion of a merit-based or points-based immigration system.

“The Trump administration could make changes in that direction through executive orders, regulatory updates, and policy guidance,” Wilson said. “New leadership at the Department of Homeland Security and the immigration agencies will interpret and enforce the current laws differently. The laws don’t even have to change if you have people enforcing them differently.”

Employers should anticipate changes to employment-based immigration hiring practices and compliance responsibilities, said Denise Gavica Perez, chair of the immigration planning and compliance practice at Akerman, based in Miami.

“The Trump administration is likely to push forward with stricter enforcement, and employers should begin preparing for these imminent changes, particularly in areas such as E-Verify and I-9 compliance, and employment visa and work authorization processes,” she said.

According to experts, other actions a second Trump administration might take include:

• Revising the H-1B visa program to make it more selective.
• Using backlog numbers to trigger the automatic suspension of applications from employment-based green card categories.
• Advocating for mandatory E-Verify registration.
• Significantly increasing worksite inspections and I-9 audits, including immigration raids on employers in industries suspected of hiring undocumented immigrant workforces; affected employers will include those operating farms and meat processing plants.

Experts also said that while some of President-elect Trump’s plans can be implemented quickly through executive or administrative action, many of those efforts are likely to be challenged in court, similar to Trump’s first term in office.

‘Sand to the Gears’ of Legal Immigration

Tara Watson, director of the Center for Economic Security and Opportunity at the Brookings Institution in Washington, D.C., predicted that the Trump administration will add “sand to the gears” of existing legal immigration pathways.

“Given the backlogs in many parts of the system, simply slow-walking the routine work of immigration processing could reduce employment-based immigration, as occurred during the first Trump administration,” she said.

Esterline expects “more memoranda at USCIS shifting the agency’s role to more of a vetting responsibility rather than a benefit-granting role.”

Take H-1B petitions as an example. The denial rate for those visas increased from 6% in 2015 to 24% in 2018 simply as the result of memos and policy guidance, according to Stuart Anderson, executive director of the National Foundation for American Policy in Arlington, Va. The denial rate dropped to 4% after court rulings and a legal settlement in 2020.

Similarly, requests for evidence (RFE) reached 60% for H-1B petitions in the first quarter of fiscal year 2019, before falling to 10% in fiscal year 2022, Anderson said.

Experts believe that the Trump administration will look to once again eliminate a policy granting deference to applicants with prior immigration case approvals, something that was reinstated by the Biden administration.

“The rescission of deference to prior case approvals was a major setback in the immigration world during the first Trump administration, specifically for employment-based visa renewals, such as H-1B visas,” said Jorge Lopez, chair of the immigration and global mobility practice group at Littler, based in Miami.

The change added to the backlog in visa adjudication as officers were required to review each application as if it were a new application, even if there were no changes to the applicant’s employment conditions or eligibility, Lopez explained.

“If implemented again, this has the potential to disrupt a business’ ability to maintain a steady workforce if it relies on foreign workers,” he said.

More Scrutiny, Longer Waits

Perez said that employers can expect heightened scrutiny of visa petitions, including stricter evaluations of job duties, qualifications, wage compliance, and recruitment. This may lead to increased RFEs and other challenges, with additional documentation required to verify that positions qualify as specialty occupations or align with prevailing wage requirements.

“Processing delays are likely, and the adjudication process may be more rigorous, leading to longer wait times and more documentation required to support PERM labor certifications and employment-based green card petitions and applications,” Perez said.

There will be more of a focus on fraud detection and national security concerns related to certain countries at U.S. consulates abroad, Gelatt said. “I would expect the reimposing of visa interviews for most people processing abroad, which would hurt overall consular capacity, adding to longer delays at consulates, and a growing backlog for visa interviews,” she said.   

The Trump administration restricted the use of visa interview waivers, which were commonly used under the Obama administration. The Biden administration reinstated the use of those waivers.

Perez said that the new administration is expected to tighten entry restrictions, reintroduce travel bans for certain countries, and institute rigorous security screening procedures for foreign nationals, including biometric data collection and extensive background checks. Countries previously affected by travel bans may face similar restrictions, potentially impacting both work-related and personal travel for foreign workers.

“It is likely that we will see a version of the ‘Buy American, Hire American’ executive order [from Trump’s first term], which sought to promote domestic manufacturing and protect U.S. jobs by prioritizing American workers and businesses, under a new Trump administration,” Lopez said.

Regulations Redux

Some of the regulations proposed—but never realized—during the first Trump term are likely to resurface, including plans to redefine eligibility for the H-1B visa program and update prevailing wage rules for H-1B and employment-based green card workers.

In its final days, the Biden administration accelerated the publishing of several employment-based immigration rules, which included codifying much of the H-1B process, strengthening worker protections in the H-2 seasonal visa programs, and permanently increasing the automatic extension period for work permits for certain renewal applicants.

“If the H-1B rule was not finalized in time, a new administration could easily halt implementation and more easily draft more restrictive regulations,” Wilson said. “Being final makes it a much more arduous task to try and rescind it,” he said. 

It is not yet clear whether the Trump administration will seek to make changes to or withdraw the regulation. The incoming 119th Congress could also invoke the Congressional Review Act to repeal the rule.   

“I expect another attempt at updating prevailing wage rules for H-1B workers, increasing salaries for eligibility, and making it more difficult to hire those workers,” Wilson said.

Raising the required salary became another way to make it difficult for employers to hire H-1B visa holders or sponsor highly skilled foreign-born employees for permanent residence, Anderson explained.

“In 2020, the Department of Labor [DOL] published a rule aimed at pricing high-skilled foreign nationals out of the labor market,” he said. “The DOL changed the formula for calculating the prevailing wage, which acts as the minimum wage employers must pay H-1B professionals or green card holders through the permanent labor certification process.”

The rule was blocked by a judge because it was not accompanied by a public comment period.

The previous Trump administration had also sought to make it harder for an employer to send an H-1B visa holder to work at a client’s location. That measure was never published in final form.

Trump could take another shot at restricting work authorization for H-4 visa holder spouses of H-1B employees waiting for green cards, Wilson said. This was a benefit the Obama administration granted in 2015. The Trump administration announced its intention to eliminate the rule, but that effort never materialized.

“If the H-4 [work authorization] program is rescinded, many spouses of H-1B holders will lose their work authorization, which could reduce household incomes and affect the satisfaction and retention of H-1B workers,” Anderson said.

The loss of H-4 work authorization may make U.S. employment less attractive to skilled foreign workers and would make it difficult for many families to wait years for an employment-based green card.

Any changes to regulations will likely be followed by litigation, but one big new determining factor is the 2024 U.S. Supreme Court decision to end courts’ deference to federal agencies when interpreting statutes, Wilson said.

“We are left to see how the Trump administration utilizes the new directive, where courts now hold the upper hand,” Lopez said. “As this is a recent change, it remains to be seen how the administration, or those opposing administrative changes, will utilize the court’s authority. This will create a more activist role for the judicial branch in interpreting immigration statutes and regulations.”

More Worksite Raids Ahead?

In a second Trump term, employers should expect 1) more Form I-9 employment eligibility verification audits, 2) more inspections by the U.S. Citizenship and Immigration Service’s Fraud Detection and National Security division, 3) more DOL audits of labor certification and labor condition applications, and 4) more of a focus on discrimination against U.S. workers.

“The Trump administration is expected to ramp up enforcement measures across various visa programs, with penalties for noncompliance becoming more severe,” Perez said. “This scrutiny will extend to wage compliance, employee eligibility verification, and adherence to visa-specific requirements.”

Employers in industries that are known or suspected to have a high percentage of undocumented workers—such as manufacturing, agriculture, food processing, hospitality, and construction—face the risk of having Immigration and Customs Enforcement (ICE) conduct workplace raids.

“Worksite raids can be very disruptive and a concern for businesses but have not historically generated large numbers of arrests or deportations,” Gelatt said. The highest number of worksite arrests was about 6,000 in fiscal year 2008. The Trump administration reported about 2,300 worksite-related arrests in fiscal year 2018.

But President Trump campaigned on mass deportation, something that could affect millions of undocumented workers—if it could be implemented. The biggest obstacle to mass deportation is resource constraints, particularly when it comes to the money, manpower, and space required to round up, detain, and process millions of people. There’s already a massive immigration court backlog.

“It will take a lot of resources to get up to one million deportations a year from the U.S. interior, vastly more than has been done before,” Gelatt said. “We may see more deportations, but not at the scale of what’s being talked about.”

The largest number of removals came in fiscal year 2012 during the Obama administration, when more than 400,000 people were deported from the U.S.

Experts have warned that the abrupt removal of millions of immigrant workers would likely lead to economic instability, particularly in industries heavily reliant on undocumented labor, such as agriculture and hospitality.

More Immigration Programs to Come Under Fire

Experts believe that programs such as Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS), which currently provide work authorization to hundreds of thousands of foreign nationals, will also likely be curtailed under the new administration.

DACA provides protection for immigrants who arrived in the United States as children. “The Supreme Court prevented the administration from dismantling the program in 2020 on technical grounds, but the legal effort may well succeed in the new term,” Watson said.

More than 535,000 people currently have DACA protection, but their status has been under challenge since 2018, when Texas and seven other states brought a lawsuit arguing the program is unconstitutional; the case will likely make its way to the U.S. Supreme Court this year.

The other program, TPS, allows migrants from countries where unstable conditions (from environmental disasters to armed conflicts) affect their safety to stay and work in the U.S. As of March 2024, more than 860,000 individuals from 17 countries lived in the United States under TPS, with countries of origin including El Salvador, Haiti, Honduras, and Venezuela.

The controversy over TPS is that these programs were meant to be temporary, but most countries have been redesignated multiple times, with some TPS grants stretching back over 20 years. 

“The Biden administration expanded TPS to hundreds of thousands of new beneficiaries,” Gelatt said. “I would expect that the Trump administration will move to end many of those TPS grants, likely when they come to the end of their current duration.”

In addition to TPS, the Biden administration’s humanitarian parole programs—which allow over 740,000 migrants from Cuba, Haiti, Nicaragua, Venezuela, and Ukraine to live and work in the United States for two years—will likely come under immediate review.

“The termination of the DACA and TPS programs would remove work authorization for many employees, potentially leading to workforce shortages in industries that depend on these workers,” Perez said.