Immigration Policy Changes Under the New Administration

Preparing for Immigration Policy Changes Under the New Administration

With the new administration set to begin in 2025, many employers are closely monitoring potential shifts in immigration policies as President-elect Trump returns to the White House. While uncertainties remain, insights from his previous administration offer guidance on what employers should anticipate and how to prepare during this transition.

Employment-Based Immigration Benefits

Employers filing for employment-based immigration benefits should be aware of potential changes, including:

  1. 1. USCIS Petition Review: USCIS may eliminate deference to previously approved applications and petitions, instead implementing “de novo” reviews for all submissions. This would mean that previously approved cases for the same employer and individual would be re-evaluated from the start.
  1. 2. National Interest Waivers (NIW): NIW petitions, particularly those in STEM fields, were favorably adjudicated under the current administration. However, stricter adjudication standards are expected, making approvals more challenging.
  1. 3. Adjustment of Status Applications: In-person interviews for employment-based green card applicants may return, potentially increasing processing times.
  1. 4. Visa Processing Delays: International travel may face disruptions due to changes in visa processing protocols. Employees abroad planning to return to the U.S. in January 2025 should ensure they have valid visa stamps to avoid delays.
  1. 5. H-4 and L-2 Dependent Applications: The Edakunni and Mayorkas settlement, which streamlined processing of dependent applications filed with principal H-1B and L-1 petitions, expires on January 18, 2025. This may result in separate adjudications and longer processing times.
  1. 6. H-1B Policy Changes: Employers may see increased prevailing wage rates and revised eligibility criteria for H-1B petitions.

 

Employer Recommendations

To mitigate risks and ensure compliance, employers should consider the following:

  1. 1. File Applications Early: Identify petitions that could benefit from adjudication under the current administration and submit them promptly, using premium processing where feasible.
  2. 2. Communicate with Employees: Maintain open communication with foreign national employees to understand travel plans and address potential issues.
  3. 3. Evaluate Green Card Solutions: Explore alternative pathways for green card applications before policy changes take effect.

 

Immigration Enforcement

President-elect Trump has announced a renewed focus on immigration enforcement, including naming Thomas D. Homan as the border czar. Employers should prepare for potential impacts, including:

  1. 1. Worksite Raids: Large-scale ICE raids are expected to resume, with agents conducting unannounced inspections and reviewing worker records.
  1. 2. Form I-9 Audits: A sharp increase in Form I-9 audits is likely, with estimates from Trump’s prior term suggesting 12,000 audits in his last year compared to 400 under President Biden.

 

Compliance Best Practices

Employers must remain compliant with current laws to avoid penalties and maintain a lawful workplace. Key practices include:

  1. 1. Avoiding Discriminatory Practices:
    1.      •Do not ask job candidates about their national origin, citizenship, or immigration status during recruitment.
    2.      •Limit inquiries to those legally permissible and consult with legal counsel as needed.
  2. 2. Proper Form I-9 Handling:
    1.      •Do not specify which documents employees should present for Form I-9 verification.
    2.      •Conduct audits carefully and take appropriate steps before acting on tips about employees’ work authorization status.
  3. 3. Antidiscrimination Compliance:
    1.      •Adhere to the antidiscrimination provisions of the Immigration and Nationality Act (INA), which protects individuals from national origin discrimination and unfair documentation practices.

 

Partnering for Compliance and Success

Navigating these potential immigration policy changes requires proactive planning and careful attention to legal obligations. For assistance in staying compliant and preparing for the evolving regulatory landscape, contact Epps & Coulson, LLP. We are here to help you safeguard your workforce and ensure your business remains compliant during this transition.

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is likely considered advertising.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.  Epps & Coulson, LLP has staff licensed in France and affiliated Counsel offices in New York and Connecticut with lawyers also admitted in Connecticut, District of Columbia Massachusetts (pending), New Jersey, Hawaii, European Union, England and Wales, France (Paris Bar) and Sweden.

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