Trump Administration Brings Uncertainty to Employment Immigration

With the start of the second Trump administration, U.S. employers and foreign workers are once again facing uncertainty about the future of employment-based immigration policies, said Jason Finkelman, an immigration attorney and owner of Finkelman Immigration Law in Austin, Texas.

In addition to the other pressures HR faces, “you all have to be a little bit of an immigration expert,” Finkelman said during his June 30 session at SHRM25 in San Diego.

Finkelman urged HR practitioners to shift from a reactive to a proactive approach to employment-based immigration, given the rapidly changing nature of immigration policies.

Surveying the Landscape

Employers continue to experience labor shortages, particularly for highly skilled workers, Finkelman said. But despite visa eligibility restrictions and increased scrutiny, employers are still going through the visa sponsorship process for foreign workers. 

The re-election of President Donald Trump has brought back the “America First” immigration policies seen during the Trump’s first term, Finkelman said.

“That’s interpreted to mean protecting American jobs, tightening eligibility requirements, and increasing scrutiny to limit legal immigration. That also means the rollback of Biden-era policies, which introduced more leniency into the immigration process,” he said. 

Employers are experiencing stricter standards, increased visa processing times, and an uptick in Form I-9 audits.

“These policy changes and regulations are coming out very quickly and with little notice,” Finkelman said. “That means HR must be mindful and proactive when conducting workforce planning and risk management.” 

Visa petitions across categories are being scrutinized, he said. More requests for evidence (RFEs) are being issued related to whether foreign nationals have the education and experience required for the job, what wages they are being offered, and where they are doing the work, Finkelman said. 

Green Card Backlogs and PERM Delays

Permanent (PERM) labor certification is seeing a dramatic increase in processing times, he said. “Today, nine to 12 months is estimated from the time that the certification application is filed to when you get an approval,” he said. 

And PERM applications are being audited at a 40% rate. “If you are being audited, you can expect another 9-10 months’ delay,” Finkelman said. “It’s important to be mindful about the timelines involved. It’s more important to consider early green card sponsorship.”

The backlog for employment-based green cards is also growing, specifically for Indian and Chinese professionals. 

H-1B Compliance Trends

There has been a lot of scrutiny of H-1B visas, Finkelman said. RFEs have been issued for questions about:

• The complexity of the role being offered.
• How the worker gained the knowledge they need to perform their job.
• The control of the employee on the worksite.

The bottom line is that employers must prepare more comprehensive petitions than previously needed to successfully get through the visa process. 

More Policy Changes

The Trump administration has reinstated travel bans on foreign nationals from certain countries, which includes the suspension of visas to foreign nationals from those countries, Finkelman said.  

“It’s important to identify any employees that may be working for you, and their home country may be on a travel ban list right now,” he said. He advised these affected employees against taking any international travel. “If there is not an essential need to travel, I would recommend staying in the U.S.,” he said. 

Humanitarian parole and temporary protected status programs are being curtailed by the Trump administration. 

“These programs are being canceled,” Finkelman said. “You will need to identify who in your organization may have work authorization under one of these programs. Be mindful of when that work authorization expires.”

There is also the potential for prevailing wage increases for H-1B visas, something Trump’s administration attempted to do in his first term, Finkelman noted. 

“During Trump’s first term, we saw an increase in the amount of worksite enforcement, including I-9 audits,” he said. “There’s been a massive uptick in I-9 enforcement over the last five months — not just for large employers, but also small employers across a wide variety of sectors. I recommend being proactive and conducting internal I-9 audits.”

Steps for Employers

Finkelman advised employers to start planning for foreign worker sponsorship early enough to consider the risks in the process, available options, and potential RFE triggers.

In addition, “meticulously track visa expiration dates and visa status,” he said. Put tracking systems into place, audit your policies for worker visa and green card sponsorship, and plan out different scenarios for when a worker is denied entry into the U.S. or when a visa petition is denied.  

Don’t forget to support your workers, Finkelman said: “Your international employees are dealing with career uncertainty and personal upheaval. Your workers are turning to you for reassurance.”