Although the pace of President Trump’s Executive Orders (EOs) targeting border enforcement has slowed since  Inauguration Day, the repercussions of these and more recent EOs on legal immigration have grown. 

This article will outline and assess recent efforts by federal immigration officials in the Department of State (DOS),  the Department of Justice (DOJ), and component agencies within the Department of Homeland Security (DHS)—US  Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs  and Border Protection (CBP)—to implement his many EOs. 

While the impact of the EOs on legal immigration suggest more burdens ahead for immigration stakeholders, his  public statements about a soon-to-be-detailed “$5 million Gold Card,” and on measures that might allow noncitizen  graduates of American universities to work in the US after graduation, offer an apparent glimmer of hope, as this  article will also explain.

Executive Order 14159: Protecting the American People Against Invasion

This EO, among other things, directed federal immigration officials in DHS, DOJ and DOS to “ensure that all  previously unregistered [noncitizens] in the United States comply with the requirements” of the Immigration and  Nationality Act (INA) § 262 (“Registration of Aliens”) [8 U.S.C. § 1302], and that a noncitizen’s failure to apply for  registration and be fingerprinted is a federal misdemeanor punishable upon conviction by six months of  imprisonment, a fine of up to $1,000, or both under INA § 266(a) [8 U.S.C. § 1306(a)]. In addition, the failure to carry  registration documentation is likewise punishable as a misdemeanor under INA § 264(e) [8 U.S.C. § 1304(e)], and  subject, upon conviction, to a $100 fine, a 30-day term of imprisonment, or both. Under EO 14159, noncompliance  with the registration requirements should be “treated as a civil and criminal enforcement priority.” These  misdemeanour offenses are characterized as Class C felonies under 18 U.S.C. § 3559(a)(8) because they carry a  term of imprisonment of 30 days, and as such, under 18 U.S.C. § 3571(b)(6), the maximum fine is instead $5,000.

The registration requirement is not new, it originated in 1940; but its enforcement is now a Trump administration  priority. 

In addition to the civil and criminal penalties noted above, an existing USCIS regulation, 8 C.F.R. § 214.1(f), provides  that a “non-immigrant’s wilful failure to provide full and truthful information requested by DHS (regardless of whether  or not the information requested was material) constitutes a failure to maintain non-immigrant status” under INA §  237(a)(1)(C)(i), and thus renders them deportable.

Implementation of EO 14159:

On February 25, 2025, USCIS posted an announcement outlining three categories of noncitizens: (1) those “[who  have] already registered”; (2) those “[who] must apply for registration”; and (3) those “[who are] not register[ed],” as  follows: 

[1] Who has already registered?

Aliens who have already registered include:

● Lawful permanent residents;

● Aliens paroled into the United States under INA 212(d)(5), even if the period of parole has expired; ● Aliens admitted to the United States as non-immigrants who were issued Form I-94 or I-94W (paper or  electronic), even if the period of admission has expired;

● All aliens present in the United States who were issued immigrant or non-immigrant visas prior to arrival; ● Aliens whom DHS has placed into removal proceedings;

● Aliens issued an employment authorization document;

● Aliens who have applied for lawful permanent residence using Forms I-485, I-687, I-691, I-698, I-700,  even if the applications were denied; and,

● Aliens issued Border Crossing Cards.

[2] Who must apply for registration?

● All aliens 14 years of age or older who were not registered and fingerprinted (if required) when applying  for a visa to enter the United States and who remain in the United States for 30 days or longer. They  must apply before the expiration of those 30 days.

● The parents and legal guardians of aliens less than 14 years of age who have not been registered and  remain in the United States for 30 days or longer, prior to the expiration of those 30 days. ● Any alien, whether previously registered or not, who turns 14 years old in the United States, within 30  days after their 14th birthday.

[3] Who is not registered?

Aliens who have not registered include:

● Aliens who are present in the United States without inspection and admission or inspection and parole;

● Canadian visitors who entered the United States at land ports of entry and were not issued evidence of  registration; and,

● Aliens who submitted one or more benefit requests to USCIS not listed in 8 CFR 264.1(a), including  applications for Deferred Action for Childhood Arrivals or Temporary Protected Status, who were not  issued evidence of registration.

The USCIS announcement is ambiguous, however, because it does not explain why those in category [3] above, who  have not registered, are not included in category [2], i.e., those who “must apply for registration.” The posting states  that “DHS will soon announce a form and process requiring registrants (and parents or guardians of minors under 14) to open a USCIS online account by February 25, 2025 in preparation for the registration process. Form “G-325R  Biographic Information (Registration)” is to be used for online registration. 

On March 12, 2025, USCIS published an interim final regulation (IFR) effective in 30 days, with a 30-day comment  period, addressing the registration requirements. 

The IFR adds some clarity to the registration requirement but is also ambiguous. 

The IFR makes clear that Canadian non-immigrants for business or pleasure who have not been issued a Form I-94  (arrival/departure record) and are considered by USCIS as not having registered, must register online by completing  Form G-325R. Submission of their Form G-325R must occur  within 30 days of March 12, 2025 just like other noncitizens who must newly register.

The IFR also points to an existing USCIS regulation, 8 C.F.R. § 264.1(e)(3), which stipulates that any noncitizen in any  non-immigrant category who has not previously been fingerprinted and who has failed to maintain non-immigrant  status must apply “at once” for fingerprinting.

The IFR also adds to the ambiguity arising from the February 25, 2025 USCIS announcement. Whereas the  announcement states that noncitizens “who have applied for lawful permanent residence using Form… I-485” are  considered as “already registered,” the IFR states: “In some cases, the acceptable evidence of registration at… is the  result of an approved application only, which may leave denied or pending applicants without any acceptable  evidence that they have complied with the requirement to register. (Emphasis added.)

Executive Order 14161: Protecting the United States From Foreign Terrorists and Other  National Security and Public Safety Threats

This EO directed federal immigration officials in DOS, DOJ and DHS to:

(a) “promptly” improve vetting and screening processes for all foreign nationals, including noncitizens who  entered the country since January 19, 2025; 

(b) review all visa programs to identify and prevent misuse by foreign actors harmful to US security,  economy, politics, or culture; 

(c) recommend measures to counter foreign nationals undermining US constitutional rights, including  freedom of speech and religion; and 

(d) evaluate and recommend enhancements to immigrant assimilation programs to promote adherence to  US constitutional principles and identity.

Implementation of EO 14161:

On March 3, 2025, USCIS—acting under the authority of EO—published a Paperwork Reduction Act (PRA) notice,  with a 60-day comment period, announcing its intention “to collect standard data on immigration forms and/or  information collection systems,” in order to comply with this EO and thereby “establish screening and vetting  standards and procedures to enable USCIS to assess an alien’s eligibility to receive an immigration-related benefit  from USCIS.” The March 3 PRA notice did not address the registration requirement or clarify the noted ambiguity  concerning categories of unregistered persons required to register.

Separately, on March 5, 2025, USCIS also published another PRA notice in reliance on EO 14161 and the agency’s  asserted need to collect “all information necessary for a rigorous vetting and screening of all grounds of  inadmissibility or bases for the denial of immigration-related benefits.” This notice, likewise with a 60-day public  comment period, announced USCIS’s intention to collect on immigration forms and/or information collection  systems “social media identifiers (‘handles’) and associated social media platform names from applicants.” The agency’s stated purpose for this collection is “to enable and help inform identity verification, national security and  public safety screening, …vetting, and related inspections.” 

As noted above, EO 14161 requires federal officials to identify noncitizens who are perceived to pose harm to US  security, economy, politics, or culture; undermine US constitutional rights, including freedom of speech and  religion; and assimilate to US constitutional principles and identity. USCIS has apparently concluded that the  collection of noncitizens’ social media handles will help the agency discern such harms or ascertain the extent of  immigrant assimilation and loyalty to American values.

According to the Trump administration, one such value is the adoption of English as our country’s official language. This is reflected in a March 1, 2025 EO (not yet assigned a number in the Federal Register), “Designating English as the Official Language of The United States.” This EO expressly rescinded EO 13166 (“Improving Access to Services for Persons with Limited English Proficiency”), and also authorized the Attorney General to “rescind any policy guidance documents issued pursuant to Executive Order 13166 and provide updated guidance, consistent with applicable law.” This rescission would seemingly include former Attorney General Merrick B. Garland’s November 21, 2022 memorandum to all
federal agencies, “Strengthening the Federal Government’s Commitment to Language Access,” as well as several agencies’ “language access plans,” accessible at Digital.gov.

In a separate action, DOS has reportedly authorized the use of artificial intelligence to review “tens of thousands  of… social media accounts” of F-1 (academic student), M-1 (vocational student), and J-1 (exchange visitor) non immigrants in the Student-Exchange Visitor Information System (SEVIS) in order to identify and cancel the visas  of certain foreign nationals, e.g., those “who appear to support Hamas or other designated terror groups.” 

Immigration stakeholders concerned about the disclosure of noncitizen social media profiles and postings, and  the AI-assisted scrutiny of the same by federal immigration officials should therefore consider alerting their  affected populations to these rapidly evolving practices and consider the submission of a comment to the March  5, 2025 PRA notice.

Although not expressly premised upon EO 14161, other noteworthy developments affecting consular visa practice  have recently taken place:

● President Trump issued a February 12, 2025 Presidential Action (“One Voice for America’s Foreign  Relations”) that declares as U.S. policy the requirement that consular officers and other DOS employees  “faithfully implement the President’s [foreign] policy” or face discipline, and orders Secretary of State to  “revise or replace the Foreign Affairs Manual [FAM] and direct subordinate agencies to remove, amend, or  replace any handbooks, procedures, or guidance.” Volume 9 of the FAM contains detailed instructions to  consular officers compiled over decades on the legal and procedural requirements for approving or  refusing immigrant and non-immigrant visa applications. Thus, it remains to be seen how the new One  Voice mandate will result in any forthcoming FAM revisions. Historically, FAM amendments have not  entailed formal procedures for public notice and the opportunity to comment before they become  effective—unlike published proposed and final agency regulations.

● The State Department on February 18, 2025 announced new and more restrictive limitations on the  circumstances when non-immigrant visa applicants are eligible for a waiver of an in-person consular  interview. Going forward, only applicants “who previously held a visa in the same category that expired  less than 12 months prior to the new application” are eligible for interview waiver. In practical terms, this  includes most foreign nationals in the United States who hold non-immigrant work visa status, since most  of them hold expiring visas issued more than a year ago.

Executive Order 14168: Defending Women from Gender Ideology Extremism and Restoring  Biological Truth to the Federal Government

This EO, among other things, directs the Secretaries of State and Homeland Security to “implement changes to  require that government-issued identification documents, including passports, visas, and Global Entry cards,  accurately reflect the holder’s sex.” The EO defines “sex” as “an individual’s immutable biological classification as  either male or female.” It also states: “Agency forms that require an individual’s sex shall list male or female and shall  not request gender identity.”

Implementation of EO 14168:

On February 11, 2025, in reliance on EO 14168, DOS published a new page under “Passport Help,” entitled “Sex  Marker in Passports,” that stated:

Under the Executive Order, we will no longer issue US passports or Consular Reports of Birth Abroad  (CRBAs) with an X marker. We will only issue passports with an M or F sex marker that match the  customer’s biological sex at birth. 

If you submit a passport application requesting an X marker or requesting a sex marker that differs from  the sex marker at your birth, you may experience delays getting your passport. You may receive a letter  or email requesting more information. We will issue you a new passport that matches your biological sex  at birth, based on your supporting documents and our records about your previous passports. 

The new page also contained answers to frequently asked questions. The FAQs indicated that previously issued US  passports are proof of US citizenship and identity, and can be used for entry into the United States until the  passport’s expiration date, without restrictions unless another country imposes limitations.

Separately, on February 7, 2025, Secretary of State Marco Rubio issued a cable (25 STATE 11402) to all “visa issuing” consular posts to implement EO 14168 in the adjudication of noncitizen applications for US visas. The cable  states:

Generally, the sex listed on the foreign passport should be considered as prima facie evidence of the  applicant’s sex as defined in the E.O. However, there may be instances when a consular officer becomes  aware that the sex listed on the foreign passport may not be the applicant’s sex as defined in the E.O.  In such cases, the adjudicator should confirm the applicant’s sex as defined in the E.O., indicate that  sex on the visa, and add a case note documenting any discrepancy between the passport and the  visa to prevent issues at the POE (port of entry).

The wilful failure to list biological sex at birth on a US visa application could lead to not merely refusal of the visa, but also a ground of permanent visa ineligibility and inadmissibility. According to a recent newspaper report, the State Department has issued a February 24, 2025 cable in reliance upon a different EO—EO 14201 (Keeping Men Out of  Women’s Sports)—which stated:

The 24 February state department cable obtained by the Guardian instructs visa officers to apply  Immigration and Nationality Act section 212(a)(6)(C)(i)—the “permanent fraud bar”—against trans  applicants. Unlike regular visa denials, this section triggers lifetime exclusion from the United States  with limited waiver possibilities.

“In cases where applicants are suspected of misrepresenting their purpose of travel or sex, you should  consider whether this misrepresentation is material such that it supports an ineligibility finding,” reads the  directive from the US secretary of state, Marco Rubio.

USCIS likewise has taken steps to implement the biological-sex-at-birth mandate of EO 14168. On March 2, 2025,  without forewarning, and to the extreme dismay of immigration stakeholders who had just prepared and transmitted  paper applications with required evidence and payment of the required filing fees, USCIS issued new editions of  several immigration forms with virtually immediate effect (as of March 3, 2025 and March 4, 2025)—all dated  January 20, 2025, President Trump’s first day in office. 

These included the following forms: N-400 (Application for Naturalization), I-485 (Application to Register Permanent  Residence or Adjust Status), I-485 Supp J (Confirmation of Valid Job Offer or Request for Job Portability), I-131  (Application for Travel Documents, Parole Documents, and Arrival/Departure Records) and I-134 (Declaration of  Financial Support). These new editions were annotated as effective immediately (as of March 3, 2025 and March 4,  2025).

The prior versions of these forms allowed applicants to specify their gender as: male, female or “other gender  identity,” and did not require disclosure of biological sex at birth. Regrettably, however, USCIS did not disclose how  the agency would handle applications submitted using the prior forms that are received after March 3rd or 4th. 

Whether USCIS accepts and adjudicates or rejects and returns such prior versions can mean the difference between  continued lawful status, on the one hand, or, ineligibility for the benefit requested, an immigration status violation,  and—under a February 28, 2025 Policy Memorandum penned by DHS Secretary Kristi Noem (“Issuance of Notices to  Appear . . . in Cases Involving Inadmissible and Deportable Aliens”)—a referral of the hapless applicant to appear  before an immigration judge in a removal hearing.

Fortunately, however, perhaps prompted by federal court litigation initiated by the American Immigration Lawyers  Association and private attorneys that sought injunctive relief, USCIS on March 8, 2025 extended the deadline for  filing the January 20, 2025 versions of the above forms to April 3 or 4, 2025.

Executive Order 14151: Ending Radical and Wasteful Government DEI Programs and  Preferencing

This EO, among other things, declared that “Americans deserve a government committed to serving every person  with equal dignity and respect, and to expending precious taxpayer resources only on making America great.” It also  directed each agency head, in consultation with the Attorney General, within 60 days, to “recommend actions… to  align agency or department programs, activities, policies, regulations, guidance, employment practices,  enforcement activities… and litigating positions with the policy of equal dignity and respect…” (Emphasis added.)

On February 19, 2025, Acting Chair Lucas stated:

The EEOC is putting employers and other covered entities on notice: if you are part of the pipeline  contributing to our immigration crisis or abusing our legal immigration system via illegal preferences  against American workers, you must stop. The law applies to you, and you are not above the law.  The EEOC is here to protect all workers from unlawful national origin discrimination, including  American workers

…

Unlawful bias against American workers, in violation of [the prohibition against national origin  discrimination in] Title VII, is a large-scale problem in multiple industries nationwide

…

Many employers have policies and practices preferring… visa holders or other legal immigrants  over American workers—in direct violation of federal employment law prohibiting national origin  discrimination. Cracking down on this type of unlawful discrimination will shift employer incentives… decreasing abuse of the United States’ legal immigration system. (Emphasis added.)

Other recent actions similarly suggest that the Trump administration intends to vigorously target employers that are  seen as favoring or are perceived to favor noncitizen workers, and thereby seen to be disfavoring US citizens. 

As reported on February 17, 2025 in Bloomberg Law, Alberto Ruisanchez, who headed the DOJ’s Immigrant and  Employee Rights (IER) section, has been replaced. IER is charged with investigating and enforcing actions by  employers which amount to citizenship status discrimination under INA § 274B [8 U.S.C. § 1324b]. This action comes  in the wake of a May 2024 letter from then-Senator JD Vance, criticizing IER for devoting insufficient attention to  investigating discriminatory instances of noncitizen preference over US citizens and permanent residents. 

This focus on enforcement of the prohibition against citizenship status discrimination which could be seen as  perpetrated against US citizens is consistent with Project 2025’s Mandate for Leadership, Ch. 17 (“Department of  Justice”), p. 568, which urged the DOJ to: 

Pursue aggressive enforcement of the immigration laws within the Immigrant and Employee Rights  Section of the Civil Rights Division to ensure that no American citizen is discriminated against in the  employment context in favor of a temporary or foreign worker. (Bolding interregional.)

The investigation and enforcement policies announced in EO 14151, as reflected in the noted actions of the EEOC  and DOJ, should be read in the context of other DOJ “Investigative And Charging Priorities,” including “Immigration  Enforcement” (capitalization in original), and specifically including 8 U.S.C. §§ “1324-1328” as announced in a  February 5, 2025 memorandum from Attorney General Pam Biondi. 

Included in 8 U.S.C. §§ 1324 through 1328 are four key immigration provisions: 

● INA § 274 (a felony prohibiting, among other things, encouraging or inducing a noncitizen “to come to, enter,  or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or  residence is or will be in violation of law”), 

● INA § 274A (relating to the employment eligibility verification Form I-9 paperwork obligations),  ● INA § 274B (noted above), and 

● INA § 274C (penalties for “document fraud”) including preparing, filing or assisting another “in preparing or  filing… any application for benefits under the INA, or any document required under the INA, or any document  submitted in connection with such application or document, with knowledge or in reckless disregard of the  fact that such application or document was falsely made” (Note that the term “falsely make” means “to  prepare or provide an application or document, with knowledge or in reckless disregard of the fact that:

o the application or document contains a false, fictitious, or fraudulent statement or material  representation, or 

o has no basis in law or fact, or 

o otherwise fails to state a fact which is material to the purpose for which it was submitted.” (Emphasis and bullet points added.)

Given the newly announced focus on immigration enforcement, employers that sponsor noncitizens for employment based immigration benefits may wish to consider reviewing (under the direction of legal counsel who can afford  privileges and protections under the attorney-client privilege and the work product exception to disclosure) all  internal immigration compliance protocols and practices. 

This proactive measure, in general, might include a review of the employer’s: 

(a) general and immigration-related recruitment and hiring policies, practices and activities; 

(b)Department of Labor (DOL) H-1B labor condition application (LCA) and PERM labor certification compliance; 

(c) Form I-9 (employment eligibility verification) and E-Verify policies and records; and

(d) the accuracy of all or a representative random sampling of the factual representations contained in petitions  and applications previously submitted to any federal immigration agency (DHS, State and DOL) in  connection with requests for employment-based immigration benefits.

Recent Presidential Announcements

On February 25, 2025, President Trump, with Secretary of Commerce (Howard Lutnick) at his side, announced a new  “Gold Card” that would grant permanent residency and a path to US citizenship for noncitizens who invest $5 million.  Unlike the current tax treatment of US citizens and permanent residents, $5 million Gold Card investors who receive  a green card through this route would be exempt from US taxes on income and assets earned or held abroad. Details  of the program, according to Secretary Lutnick, were to be revealed in two weeks.

As the White House transcript of remarks before a February 26, 2025 cabinet meeting reflects, he added: 

I get calls from, as an example, companies where they want to hire the number one student at a school.  A person comes from India, China, Japan, lots of different places, and they go to Harvard, the Wharton  School of Finance. They go to Yale. They go to all great schools. And they graduate number one  in their class, and they are made job offers, but the offer is immediately rescinded because you  have no idea whether or not that person can stay in the country. I want to be able to have that  person stay in the country. 

These companies can go and buy a gold card, and they can use it as a matter of recruitment.

He returned to the topic in his March 4, 2025 State of the Union address:

With [the] goal [of balancing the budget] in mind, we have developed in great detail what we are calling  the gold card, which goes on sale very, very soon. For $5 million, we will allow the most successful job creating people from all over the world to buy a path to US citizenship.

It’s like the green card but better and more sophisticated. And these people will have to pay tax in our  country. They won’t have to pay tax from where they came. The money that they’ve made, you wouldn’t  want to do that. But they have to pay tax, create jobs. They’ll also be taking people out of colleges and  paying for them so that we can keep them in our country instead of having them be—being forced out.  No. 1 at the top school, as an example, being forced out and not being allowed to stay and create  tremendous numbers of jobs and great success for a company out there.

Many questions about the Gold Card proposal remain unanswered, including:

● How can the President issue immigrant visas or green card status in the absence of federal immigration  and tax legislation?

● Will the Gold Card visa program supplant or run concurrently with the existing EB-5 immigrant visa  program which requires only a minimum investment of $800,000?

● Given the existing statutory limit on the annual number of immigrant visas that may be issued, what  will be stated as legal authority for the unlimited issuance of permanent residency visas through the  Goal Card program?

Notwithstanding doubts about how this program can be lawfully launched, President Trump’s remarks about the  deserving need of US employers to hire noncitizens with degrees from American colleges and universities are  heartening.

Conclusion

No matter the fate or desirability of the Green Card visa program, and the possibly more welcoming attitude toward  immigration benefits for American-degreed noncitizens, US employers must nevertheless reckon with the added  burdens of time, expense and energy imposed by agency actions implementing President Trump’s post-inauguration  Executive Orders. The complexity of the attendant legal issues and magnitude of potential business risks suggest  that they should (pardon the brazen self-promotion) keep their immigration counsel on speed dial.

[Blogger’s Note: This post, coauthored by my colleague, Amanda Adamczenko, and me, presents a “win-win-win” opportunity — a rara avis in the current climate. For the sake of all law-abiding immigration stakeholders, let’s hope that it gains traction.]

With an array of executive orders (EOs), President Trump has affirmed his commitment to controlling immigration as a core priority of his second term, emphasizing the need to enforce stricter immigration policies and prioritize national security. Since taking office, he has followed through on his promise to launch a whole-of-government campaign to apprehend and deport millions of foreign nationals residing in the United States without legal status. At the same time, he has maintained support for legal immigration, recognizing the importance of skilled workers, especially those with expertise in AI technologies.

An efficient and surefire way to implement these Trump administration priorities—both stanching illegal immigration and fostering legal immigration—is readily available in the form of a revitalized and expanded stateside visa renewal program similar to a pilot program that expired on March 1, 2024. Under the pilot, up to 20,000 holders of H-1B visas—issued to foreign workers in specialty occupations—were allowed to renew their visas while remaining in the U.S. by submitting applications to the State Department from within the country.

Applicants for stateside visa renewals are required to complete their visa application (Form DS-160) online, pay the required fee, and mail their original passport to a designated State Department address in the United States. The DS-160 asks an array of probing questions, including present address and past activities that may reveal either compliance with or violations of U.S. immigration laws. Possessed of this knowledge, State Department officials would thus have a ready means of implementing a January 20, 2025 EO, “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats.” This EO directs the secretary of state, in cooperation with the attorney general, the secretary of homeland security, and the director of national intelligence to “promptly … vet and screen to the maximum degree possible all aliens who … are already inside the United States …”

Another EO, “One Voice for America’s Foreign Relations,” signed on February 12, 2025, mandates significant reforms within the U.S. Foreign Service to ensure alignment with the president’s foreign policy agenda. The secretary of state is directed to implement changes in recruitment, performance evaluation, retention standards, and training programs to achieve this alignment. While the order does not directly address visa issuance, it emphasizes streamlining U.S. foreign relations and improving operational efficiency, measures which would be advanced by reintroducing the stateside visa renewal program.

Expanding this program is a practical solution to both strengthen immigration enforcement and attract skilled workers. If any noncitizen applicants for stateside visa reissuance are identified as national security threats, criminals, or terrorists, the Bureau of Diplomatic Security (DS), working with U.S. Immigration and Customs Enforcement (ICE), could readily target these individuals for apprehension and removal from the United States.

By allowing stateside visa reissuance, the State Department could also better control the flow of foreign nationals who seek U.S. visas, aligning immigration policies with broader national interests in accordance with the EOs. Thus, consular officers at posts abroad can focus on high-priority cases, such as in-person visa interviews, applications warranting more intense, multi-agency screening known as “administrative processing,” and cases involving national interest exemptions from any forthcoming travel bans or other restrictions. With more resources allocated to these outside-the-U.S. tasks, the overall visa adjudication process would be streamlined.

A revamped and expanded stateside visa renewal program would also buttress another EO, President Trump’s “America First” trade policy for global competitiveness. By facilitating stateside visa issuance for qualified workers and students, the U.S. would be better positioned to attract the best global talent, reinforcing its competitive edge in innovation and economic growth. Pursuing this goal, however, would require expanding the domestic visa renewal program to include other categories beyond the H-1B visa, such as E, L, and O work visa categories. Dependent spouses and minor children of workers should also be included, along with “national-security-sensitive” categories, like F-1 student visas and J-1 exchange visitors.

The launch of a robust stateside visa reissuance program would prove a “win-win-win” scenario—one that is fully aligned with the objectives of the EOs:

  • National security threats would be identified and addressed swiftly;
  • Consular officers could dedicate their time to issuing visas to the most deserving applicants and preventing the undeserving from gaining entry to the United States;
  • America’s global trade would be enhanced;
  • Noncitizens who qualify for stateside visa renewal would avoid unnecessary international travel and the long delay in scheduling an in-person interview at a consular post abroad (particularly in light of the new “visa-issued-in-the-last 12 months” restriction on interview waivers announced by the State Department on 18 February 2025); and
  • Costs and operational disruptions for businesses and academic institutions that rely on skilled foreign labor and students would be minimized.

In sum, by launching an expanded domestic visa reissuance program, the Trump administration would produce an immigration policy that achieves both security goals and economic growth, ensuring that the U.S. remains a top destination for talent and innovation while better safeguarding our borders.

[This post first appeared in Mobility News, republished with permission of the Worldwide Employee Relocation Council (WERC).]

On January 20, 2025, President Trump issued 26 Executive Orders and additional actions focused on immigration enforcement, with significant impacts on legal, employment-based immigration. The directives include stricter vetting processes, potential delays in visa processing, and heightened scrutiny for foreign workers, especially those from countries facing visa bans. This vetting process will involve not only new visa applicants but also noncitizens in the US who entered on a visa since January 2021.

Employers will face longer wait times, increased administrative burdens, and potential disruptions for workers from certain countries. Additionally, new enforcement measures could require foreign workers to carry proof of lawful immigration status and present it to any immigration officer whom they encounter upon request. While the long-term effects remain uncertain due to potential legal challenges, businesses should prepare by consulting immigration counsel and supporting affected employees.

This article will assess foreseeable changes to the US employment-based immigration system likely to result from these directives and suggest preliminary steps for mobility professionals to consider as developments unfold. Because this article is focused on employment-based immigration, it will not address executive orders to deploy US troops to the southern border, resume completion of the border wall, suspend the refugee resettlement program, or overhaul the asylum process.

A cautionary note

Presidential executive orders are nothing new (George Washington issued eight of them). An Executive Order (EO) is a directive issued by the President of the United States to manage operations within the federal government. While powerful, the legal effect of an EO is constrained by both Congressional authority and judicial power.  Moreover, because many of President Trump’s orders call for action in the future and given that the outcome of pending and anticipated litigation challenging them is uncertain, it is too soon to say what their long-term impact may be. Still, in the near term, the likely changes to employment-based immigration—and the consequences to mobility professionals—may require consideration.

Executive Orders and actions directly affecting employment-based immigration

  1. Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats

What it says

The EO aims to enhance national security by addressing potential threats posed by foreign nationals seeking to enter or remain in the United States who may engage in terrorism, promote harmful ideologies, or exploit immigration laws for malicious purposes. The focus is on identifying and screening individuals before they enter or while they are in the US to prevent national security threats. The order also seeks to “ensure that admitted [noncitizens] otherwise already present in the United States do not bear hostile attitudes toward its citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists and other threats to our national security.”

The EO establishes amulti-agency effort led by the Secretary of State, in coordination with the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence (collectively, “Agency Leaders”), to “promptly” improve vetting and screening processes for all foreign nationals. This includes reviewing information from foreign countries and re-establishing a uniform baseline for security checks that existed on January 19, 2021 (the end date of President Trump’s first term).

Within 30 days, Agency leaders are directed, among other things, to:

  • Review all visa programs to identify and prevent misuse by foreign actors harmful to US security, economy, politics, or culture.
  • Recommend measures to counter foreign nationals undermining US constitutional rights, including freedom of speech and religion.
  • Evaluate and recommend enhancements to immigrant assimilation programs to promote adherence to US constitutional principles and identity.

Within 60 days, Agency leaders are directed, among other things, to submit a report to President Trump identifying countries with deficient vetting and screening systems. The report must include (a) a list of countries where vetting is insufficient to ensure security, (b) recommendations for partial or full suspension of nationals from those countries under section 212(f) of the Immigration and Nationality Act (“INA”), and (c) data on the number of nationals from these countries admitted to the US since January 20, 2021, and their subsequent activities.

What it means for mobility

This EO mandates a prompt restoration of enhanced security screenings that applied during President Trump’s first term in office. These screenings are likely to affect foreign nationals applying for immigrant and nonimmigrant visas and admission to the US, and noncitizens on whose behalf US employers will submit new petitions to US Citizenship and Immigration Services (“USCIS”) for extension, change or amendment of nonimmigrant status or adjustment of status to lawful permanent residency. Presumably, given the Biden administration’s final H-1B Modernization regulation, such screenings would likely be conducted by the USCIS Fraud Detection and National Security directorate (“FDNS”) at employer and third-party worksites and at the personal residences of noncitizen sponsor workers who have been authorized to work remotely, as this regulation authorizes.

Mobility professionals should therefore anticipate longer waiting periods for consular visa appointments; an increased number of visa applicants whose applications are placed in “administrative processing” for enhanced security screenings by multiple federal agencies before a visa can be issued; adjudications processing backlogs at USCIS; and more frequent issuance to employer petitioners by that agency of requests for evidence (“RFEs”) and notices of intent to deny (“NOIDs”) any newly-filed immigrant and nonimmigrant visa petitions, as well as notices of intent to revoke (“NOIRs”) previously approved petitions. Moreover, applicants for employment authorization documents (“EADs”) and advance parole travel authorizations could likewise be expected to receive similarly unwelcome USCIS notices.

This EO also sets the stage in 60 days for a restoration of the ban on visa issuance and admission to the US under President Trump’s first term. This “travel ban”, which primarily applied to citizens of majority-Muslim nations and other countries deemed hostile to US interests, was ultimately upheld by the US Supreme Court under INA § 212(f). Any new ban, moreover, would likely include exemptions in the national interest; hence, mobility professionals should be prepared, with the assistance of legal counsel, to document and submit to US consular officers such exemption requests whenever yet-to-be-defined qualifying circumstances would permit.

This EO speaks specifically of the need to engage in extreme vetting of noncitizens who “are already in the United States, are vetted and screened to the maximum degree possible.”   One could interpret this as presaging a restoration of an interview call-in process that may resemble the National Security Entry-Exit Registration System (NSEERS) program established in the aftermath of the September 11, 2001 terrorist attacks by the legacy agency, Immigration and Naturalization Service (“INS”), and ultimately implemented by the US Department of Homeland Security (“DHS”). This “Special Registration” program required certain noncitizens (nonimmigrant males who were 16 years of age and older from 25 specific countries) to register with immigration authorities and appear in person for interview and to be photographed and fingerprinted at an agency field office.

NSEERS was predicated on the duty, as a precondition to the requirement, applicable to all noncitizens, that they maintain lawful immigration status, and always carry with them and present upon request their “registration” documents, meaning, the individual’s I-94 admission or green card.

Thus, mobility professionals may wish to consider reminding their noncitizen populations (and family members who are foreign nationals) to maintain in their possession and be prepared to present to immigration and law enforcement officials such “registration” documents upon request. See INA § 264(e) [8 U.S.C. §1304(e)] which provides:

Personal possession of registration or receipt card; penalties.–Every noncitizen, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of noncitizen registration or noncitizen registration receipt card issued to him . . . Any noncitizen who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

Furthermore, mobility professionals should also consider cautioning their noncitizen populations about the potential risks of engaging in public protests or in publishing arguably controversial social media posts. This is because the EO apparently seeks to penalize actions by noncitizens that are perceived as infringing on the rights of U.S. citizens, including freedom of speech and religion, and “recommend[s] enhancements to immigrant assimilation programs to promote adherence to U.S. constitutional principles and identity.” Foreseeably, however, whenever these newly announced directions are fleshed out by the Trump Administration, the federal courts will undoubtedly have the final say on the scope of constitutionally protected activities by noncitizens.

  1. Protecting the Meaning and Value of American Citizenship

What it says

This EO aims to end birthright citizenship for certain children born in the United States.  It does so despite the 14th Amendment to the US. Constitution which states:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” By focusing on the phrase, “subject to the jurisdiction thereof,” the EO declares that US citizenship should not automatically extend to individuals born in the US if:

  1. The mother (defined as “the immediate female biological progenitor”) was “unlawfully present” in the United States, and the father (defined as “the immediate male biological progenitor”) was neither a US citizen nor a lawful permanent resident at the time of the child’s birth, or
  2. The mother’s presence in the United States “was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa)” and the father was neither a US citizen nor a lawful permanent resident at the time of the child’s birth.

The EO, however, does not say how government officials would determine US citizenship if the mother is within one of the foregoing categories but the father’s identity is unknown, e.g., in cases of rape by an unidentified assailant or where the father was an anonymous sperm donor. Nor does the EO describe how such a child would otherwise obtain lawful immigration status without departing from the United States.

The policy interpretation declared in this EO is set to take effect on February 19, 2025. It is not retroactive.

The EO further directs the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Commissioner of Social Security to take “all appropriate measures to ensure that the regulations and policies of their respective departments and agencies are consistent with this order, and that no officers, employees, or agents of their respective departments and agencies act, or forbear from acting, in any manner inconsistent with this order.”

Publication of this EO promptly led to the filing of several lawsuits challenging it in various federal district courts across the country, e.g., in suits brought by the American Civil Liberties Union, a coalition of several states, and a multi-party suit. On January 23, 2025, in yet another suit, US District Judge John Coughenour, at the urging of the states of Washington, Arizona, Illinois, and Oregon, issued a temporary restraining order enjoining the EO. 

Given the plethora of suits, it is foreseeable that the various federal judges hearing the cases may issue inconsistent rulings, and that the cases will be appealed to the circuit courts and ultimately to the US Supreme Court.

What it means for mobility

Mobility leaders should anticipate that children born on or after February 19, 2025 whose mother is described in either of the two categories of disqualified classes will still be classified as US citizens at birth, unless the Supreme Court rules otherwise. In the meantime, the parent(s) of these children should be urged to apply immediately for US passports on an expedited basis for an additional fee of $60. By expeditiously applying for and receiving a US passport before the federal litigation challenging this EO is ultimately resolved, the child’s status would be declared that of an American citizen.  Thus, the State Department and other federal government officials would bear the burden of initiating proceedings and carrying the burdens of proof and persuasion before a federal court that the child should not hold US citizenship. These burdens on the government may prove advantageous to the child in their ability to retain American citizenship.  

In addition, mobility leaders may wish to direct the noncitizens in their care to federal laws which—apart from the 14th Amendment—establish a statutory basis for US citizenship to persons born in Hawaii or Alaska. See 8 U.S.C. § 1404, which provides that individuals born in Alaska on or after March 30, 1867 are US citizens at birth, and 8 U.S.C. § 1405, which states that persons born in Hawaii on or after April 30, 1900 are US citizens at birth. These statutes, unlike the 14th amendment, do not contain the assertedly disqualifying phrase, “subject to the jurisdiction thereof.”

Executive Orders and actions indirectly affecting employment-based immigration

  1. Federal Workforce EOs and Presidential Actions: Hiring Freeze, Return to In-Person Work, and Restoring Accountability to Policy-Influencing Positions within the Federal Workforce.

What these say

Hiring Freeze:
This Presidential Action implements a temporary freeze on hiring for federal government positions, with exceptions for national security, public safety, and other critical functions. The purpose is to reduce government spending and assess staffing levels within federal agencies. The Action does not specify whether continued hiring of federal employees for immigration adjudicative functions such as visa applications, labor certifications, prevailing wage determinations, or immigration benefits requests would fall within the specified exceptions.

Return to In-Person Work:
This Presidential Action mandates that federal employees return to in-person work at government offices, rolling back remote work policies established during the COVID-19 pandemic. The order emphasizes the importance of physical presence to improve collaboration, productivity, and public service.

Restoring Accountability to Policy-Influencing Positions within the Federal Workforce:
This EO reforms the federal workforce by reinstating rules that make it easier to discipline or remove federal employees in policy-making positions who are deemed underperforming or politically biased. It seeks to ensure that individuals in such roles are held accountable for their actions and align with the Trump Administration’s goals.

What these mean for mobility

Federal directives that order a freeze on hiring and require a return to the office of what is reportedly a substantial cadre of remote workers suggest that the adjudication of USCIS petitions and applications requesting immigration benefits and Department of Labor (DOL) PERM labor certifications and prevailing wage determinations may take longer and that processing backlogs could grow. For example, according to the General Accounting Office 38% of USCIS employees work remotely as of February 2024.

These personnel actions may likewise also affect the State Department and delay the scheduling of consular visa interviews, particularly given the anticipated slowdown in consular operations flowing from the EO “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” discussed above.

Moreover, the “Restoring Accountability” EO will likely motivate federal immigration officials in policymaking positions to proceed cautiously on announcing any expansive or welcoming changes until White House positions on employment-based immigration solidify.

Notwithstanding the previously discussed EO’s mandate for a review of all visa categories to identify and prevent misuse by foreign actors harmful to US security, economy, politics, or culture, there may be reason, however, for cautious optimism.  Recent remarks of President Trump announcing a $500 billion investment in artificial intelligence suggest that he remains supportive of employment-based immigration.

  1. Protecting the American People Against Invasion

What it says

This EO focuses on enforcing US immigration laws and prioritizing national security and public safety. While it does not expressly address legal, employment-based immigration, the implementation of this mandate could well cause hapless noncitizens to fall out of legal status and thus make the work of mobility professionals even more challenging. Key provisions of the EO that could conceivably impact employment-based, legal immigration include:

  1. Revocation of prior policies: Rescinds several executive orders from the Biden Administration related to immigration enforcement, asylum processes, and family reunification, replacing them with stricter enforcement priorities, and directs Agency Leaders to take more restrictive actions, including but not limited to:
    1. ensuring that the parole authority is exercised on only a case-by-case basis and only when an individual noncitizen demonstrates urgent humanitarian reasons, or a significant public benefit derived from their particular continued presence in the United States;
    1. ensuring that designations of Temporary Protected Status (TPS) are limited in scope; and
    1. ensuring that employment authorization is not provided to any unauthorized noncitizen in the United States.
  2. Enhanced enforcement: Directs agencies to:
    1. Set priorities for immigration enforcement, including detention, removal, and prosecution of unauthorized noncitizens.
    1. Establish Homeland Security Task Forces (“HSTFs”) in each of the states to combat criminal organizations, and “end the scourge of human smuggling and trafficking.”
  3. Identification and penalties: Mandates identifying unregistered noncitizens, imposing civil and criminal penalties, designating the failure to present registration documents such as I-94 admission records and green cards as an enforcement priority, and ensuring compliance with immigration reporting requirements.
  4. Detention and removal: Calls for “expedited removal” processes for noncitizens unlawfully present in the in the United States, apparently including any noncitizen unable to present evidence of lawful presence, i.e., their registration documents, who are encountered within a “reasonable distance” from the US border, interpreted US Customs and Border Protection (“CBP”) as 100 air miles of the US border under 8 C.F.R. § 287.1. Noncitizens encountered by CBP who have been granted humanitarian parole in the last two years,1 such as citizens of Ukraine, Cuba, Haiti, Nicaragua, and Venezuela may be particularly at risk of having their parole terminated and being classified by DHS for expedited removal under INA § 235(b)(1)(A)(iii)(II) in the exercise of “enforcement discretion,” as announced in a January 23, 2025 memorandum from Acting Secretary of Homeland Security Benjamine C. Huffman to all DHS immigration agency heads (Huffman Memo”).
  5. Ban on visas for “Recalcitrant Countries” refusing to accept the return of their citizens. Requires effective implementation of the sanctions provided by INA § 243(d), 8 U.S.C. § 1253(d), to ensure that diplomatic efforts and negotiations with foreign states include the foreign states’ acceptance of their nationals who are subject to removal from the United States.

The overarching goal is to establish stricter immigration enforcement policies, reduce illegal immigration, and prioritize the security and well-being of US citizens.

What it means for mobility

The new constraints and enforcement measures mandated by this EO will likely make the human resources function for corporate employers more challenging.

By requiring that humanitarian parole be granted only on a case-by-case basis, restricting TPS designations, and declaring that employment authorization documents (“EADs”) shall not be issued to unauthorized noncitizens, the EO will likely restrict what has been a promising recruitment path for employers under the Biden Administration. 

The EO’s call for the creation of HSTFs in each of the states to combat human trafficking may pose enforcement exposures and lead to increased investigations of employers in certain industries, e.g., meatpacking, agriculture, and manufacturing.

The EO’s proposed expansion of expedited removal, apparently within 100 air miles of the US border, and its focus on enforcement of the requirement that noncitizens carry evidence of registration, i.e., I-94 admission records and green cards, portend the possibility that some unfortunate noncitizen employees or their immediate family members who fail to carry and proffer proof of registration may be denied the opportunity to contest their removal before an immigration judge, and instead be sent abroad quickly by CBP. Moreover, the Huffman Memo’s instruction that DHS immigration officers consider terminating humanitarian parole and exercising enforcement discretion to invoke expedited removal authority could lead to the loss of current noncitizen employees who possess EADs and may be encountered by DHS.

The EO’s mandate to more vigorously enforce the “recalcitrant-countries” visa ban is especially ominous in light of the recent enactment of the Laken Riley Act, which would provide expedited scheduling and legal standing in federal court to any state attorney general, or other authorized state officer, alleging a violation by the Secretary of State of the INA § 243(d) requirement to discontinue granting visas to citizens of such countries. According to a July 11, 2024 letter sent by 17 members of the House of Representatives, China “is one of 13 countries [including reportedly Israel and India, among others] considered uncooperative or ‘recalcitrant,’ systematically refusing or needlessly delaying the repatriation of their citizens.”  Given the high concentration of nonimmigrant workers employed by US-based companies who hail from these countries, any wholesale ban on US visa issuance would likely disrupt business operations.

As can be seen, President Trump’s “day-one” mandate promises to comprehensively overhaul US immigration programs. While awaiting the outcome of the foreseeable litigation challenging his directives, mobility leaders should consult with their immigration counsel and begin to assess the impact on business operations and continuity. The affected noncitizen population of workers and families in their organizations will benefit from assurances that the company will keep them informed, advise them on precautions, and speak up or litigate in their support or defense if necessary.

  1. The number of humanitarian parolees allowed entry to the US is substantial, as USCIS has reported:
     
    In FY 2023, USCIS supported the Biden-Harris Administration’s efforts to establish lawful pathways that allow for the safe and orderly processing of individuals into the United States through the implementation of new processes for Cubans, Haitians, Nicaraguans, and Venezuelans (CHNV); and by maintaining support for the Uniting for Ukraine (U4U) process. As of the end of FY 2023, more than 150,000 Ukrainian nationals and their immediate family members had entered the United States under the U4U process and nearly 238,000 individuals had entered through the CHNV process.
     
    Source: https://www.uscis.gov/sites/default/files/document/reports/fy2023_annual_statistical_report.pdf ↩︎

The upcoming political transition to Republican control of the White House and Congress will no doubt bring significant changes to U.S. immigration policy and prompt an immediate call to action for mobility leaders.

Immigration policy changes historically occur swiftly after inauguration. Incoming administrations often use the first 100 days of a new presidency to take bold and decisive actions.  President-elect Trump’s designee as Chief of Staff, Susie Wiles, has forecasted as much in a November 11, 2024 New York Times article, “Trump Plans Series of Executive Orders for Day 1, Susie Wiles Tells Donors,” predicting, according to witnesses at a private function, that he “would move on his first day in office to reinstate several executive orders from Mr. Trump’s first term that President Biden had revoked.”  

The anticipated executive actions and policy or rule changes could result in the imminent loss or restriction of noncitizen work permission such as DACA (Deferred Action for Childhood Arrivals), TPS (Temporary Protected Status), humanitarian parole programs, e.g., U4U (Uniting for Ukraine), and H-4 EADs (employment authorization documents for H-4 spouses of H-1B workers). They could also result in the restoration of policies from the first Trump term that were stymied by litigation or revoked by President Biden, including higher prevailing wage requirements, enhanced proof of financial self-sufficiency, and more exacting eligibility criteria for work visas and green cards.

Mobility professionals must therefore act soon to prepare comprehensive strategies that – as much as possible – safeguard their organizations and noncitizen employees. Here are key areas requiring attention:

Workforce Protection Strategy

Organizations should therefore quickly develop a multi-layered protection strategy that begins with a thorough workforce assessment. This means creating detailed profiles of every noncitizen employee, including current immigration status, work authorization type and expiration, present location, past travel to countries deemed hostile to the U.S., and upcoming international travel plans. Even U.S. permanent residents should be considered, as the first Trump administration showed that green card holders could face entry challenges or delays during surprise announcements of unanticipated visa and entry bans.

Strategic Travel Management

Past experience with sudden policy changes necessitates a proactive travel management approach. Organizations should consider implementing flexible travel policies that can anticipate or quickly adapt to new restrictions. This includes developing clear protocols for essential business travel while creating safety nets for employees who might be affected by sudden policy changes. Companies should establish criteria for determining when employees should return to the U.S. and how to handle exceptions for critical business or personal needs.

Enhanced Communications Channels and Employee Support

The next four years will likely bring increased complexity to immigration processes. Organizations should build robust support systems that include:

  • Dedicated internal communications channel to announce alerts and corporate policies in response to any new U.S. immigration developments of importance or concern to management and to affected noncitizens
  • Regular consultation with immigration counsel
  • Wellness and family support services
  • Legal assistance networks
  • Career development pathways that account for potential immigration constraints

Compliance and Documentation

President-elect Trump’s designee as “Border Czar,” Thomas Homan, has stated that to effectuate the new administration’s announced plans for the mass deportation of unauthorized noncitizens, worksite raids (presumably including I-9 investigations) will be a key tactical accompaniment. 

This anticipated increase in enforcement activities will require strengthened internal compliance measures. Organizations should invest in comprehensive compliance reviews by counsel (who may offer protection of privileged and confidential attorney-client information) before enhanced federal scrutiny begins. This includes reviews of all immigration-related policies, processes, decisions, immigration-benefits requests, and verifications of work authorization.  It also includes a review of all immigration records and paperwork maintained by the organization, and the lawful destruction of records which are no longer required by law or regulation to be maintained.

Case Preparation Planning

As a candidate, President-elect Trump said: “We’re going to let a lot of people come in, because we need more people, especially with AI coming. The farmers need it, everybody needs it, but we’re going to make sure they’re not murderers and drug dealers.”  He also forecasted in a podcast interview (as reported and welcomed in the Indian press) that during his second term: “What I want to do and what I will do is, [that if] you graduate from a college, I think you should get a green card automatically as part of your diploma, a green card to be able to stay in this country.” Shortly after the podcast aired, Mr. Trump’s then campaign press secretary and now his Press Secretary-designee, Karoline Leavitt, issued a statement to clarify that his plan would include an “aggressive vetting process,” to exclude “all communists, radical Islamists, Hamas supporters, America haters and public charges.” She added: “[He] believes [that] only after such vetting has taken place, we ought to keep the most skilled graduates who can make significant contributions to America. This would only apply to the most thoroughly vetted college graduates who would never undercut American wages or workers.”

Whether or not these campaign announcements of more welcoming employment-based immigration options materialize, mobility leaders should anticipate that federal immigration agencies in the second Trump Administration will view petitions and applications for visas and immigration benefits with a skeptical eye.  Moreover, deference to prior visa approvals may no longer be given.  This means that each new request must be fully documented with evidence to establish eligibility for the immigration benefit sought.  It also means that cases will likely take much longer to adjudicate, and that more requests for evidence, notices of intention to deny or revoke petitions, and outright denials should be expected.  Mobility leaders should therefore factor in the additional time, burden, cost and frustration that the documentation of eligibility for immigration benefits will probably entail.

Financial Planning

Immigration-related costs will likely increase significantly. Organizations should prepare comprehensive budgets that account for:

  • Higher prevailing wage requirements
  • Increased fees for legal counsel and representation
  • Enhanced compliance program costs
  • Higher expenses to support affected employees and their families
  • Contingency funds for unexpected policy changes and possible litigation

Business Continuity Planning

Organizations must also develop robust contingency plans that address potential workforce disruptions. These include:

  • Creating detailed succession plans for key positions if noncitizen workers lose employment authorization
  • Evaluating options for relocating affected noncitizens to other more accommodating foreign locations
  • Developing alternative recruiting and staffing strategies
  • Building flexible work arrangements, including remote work
  • Establishing clear communication protocols for affected teams

* * *

The key to successfully navigating these foreseeable U.S. immigration changes lies in preparation and adaptability. Organizations that invest in comprehensive immigration management strategies now will be better positioned to protect their workforce and maintain business continuity in the face of possibly abrupt and disruptive policy changes. These preparations are not just about compliance – they are essential to maintaining your organization’s competitive advantage through talent retention and protection of its international workforce investment.

[This article first appeared in Worldwide ERC’s Mobility News on December 16, 2024.]

The voters have spoken. President-elect Donald Trump is heading back to the White House and majority GOP-control in the Senate has been secured (but House control remains uncertain). Mobility professionals should therefore take immediate proactive measures in the runup to January 20. The steps suggested below, we believe, will demonstrate to the company’s leaders and to its noncitizen workers that effective strategies are in place to deal with the uncertain future that lies ahead:

  • Inventory your population to confirm each noncitizen worker’s current immigration status, type of U.S. work authorization, country of origin, countries of recent travel, and their current location if outside the United States. Even green card holders may be at risk of being temporarily stranded abroad if new and likely enhanced travel bans are announced without forewarning.
  • Consider announcing one or both of the following:

An optional “return to the U.S. promptly” policy informing affected noncitizens that their career progression will not be impaired if in consultation with their manager, they determine that they should return to the U.S. before the incoming administration is positioned to announce new travel bans, and/or

A recommendation that there be a moratorium temporarily restricting departures from the U.S. (with appropriate exceptions for business exigencies, personal considerations, and the comparative risk profile of each individual based on likelihood of future re-admission to the U.S.) if and when a travel ban affecting distinct categories of employees is announced.

  • Consider developing a bespoke corporate communications strategy that includes:

A dedicated internal communications channel (or channels) to announce alerts and corporate policies and strategies relating to any new immigration-related White House or Congressional developments of importance or concern to management and to affected noncitizens, and

A variety of forms of personal support to noncitizen workers to help them deal with the challenges ahead and reassure them that the company will provide ongoing information and assistance in the form of open houses, office hours, one-on-one consultations, and other suitable help.

  • Determine what types of support to noncitizens and their family members the company is prepared to provide. This could range from assistance with spousal work authorizations to support for the individual if resort to federal court is necessary.
  • Assess vulnerable populations at risk of losing work permission or legal status in the U.S., including:

Holders of Temporary Protected Status (TPS), or Deferred Action for Childhood Arrivals (DACA) status, and persons granted “parole” status and the right to work by the Biden Administration, i.e., citizens of Ukraine, Afghanistan, Venezuela, Cuba, Nicaragua, and Haiti.

Individuals who applied for (a) benefits under the June 18, 2024 Biden executive action “Keeping Families Together,” which allowed for parole in place for noncitizen spouses and children of U.S. citizens residing in the U.S. for at least 10 years, and (b) waivers of visa ineligibility and inadmissibility to DACA holders and certain graduates of U.S. colleges and universities.

H-4 spouses with work authorization (EADs)

  • Prepare to initiate recruitment to replace any workers among the above vulnerable populations who may soon no longer be authorized for employment.
  • Prepare your teams to expect a flurry of already-drafted, immigration-related executive actions to be published soon after January 20, 2025.
  • Assess the level of the company’s immigration compliance and take prompt corrective measures if compliance lapses are identified. These would include the review of Form I-9/E-Verify policies and practices; the company’s satisfaction of Labor Department H-1B labor condition application regulations; its recruiting, hiring or employment practices that may be seen to favor noncitizens and discriminate against protected U.S. workers (citizens, green card holders, refugees and asylees); and the accuracy of evidence previously submitted in support of employment-based work visa and green card petitions.
  • Expect a beefed-up investigative and enforcement role for the Justice Department’s Immigrant and Employee Rights (IER) unit and greater influence exerted by the USCIS’s Fraud Detection and National Security (FDNS) through more employer site visits, visits to noncitizens’ residences, and FDNS review of new and previously filed employer-sponsored immigration petitions and applications.
  • Expect more delays, requests for additional evidence (RFEs), notices of intent to revoke (NOIRs) previously approved petitions and underlying work status, and denials of newly-filed employer-sponsored petitions and applications. Some of these may be caused by current immigration adjudicators taking early retirement, and by heightened, time-consuming security-clearance requirements for adjudicators.
  • Anticipate the elimination of the current USCIS policy granting deference to previous work-visa approvals where the job duties and location are unchanged; instead, expect that every request for extension or amendment of work status must be supported by convincing new evidence of eligibility.
  • Anticipate the elimination of USCIS’s adjustment of status interview-waiver policy and more in-person employment-based green card interviews at USCIS field offices for your noncitizen workers and their families.
  • Expect delays in scheduling consular visa appointments caused by turnover of officers at U.S. embassies and consulates, more requests for national interest exemptions under the new and likely enhanced travel bans, and greater cases delayed by national-security vetting (known as “administrative processing”).
  • Expect increased restrictions and requirements for H-1B workers, and enhanced scrutiny of F-1 students and J-1 visitors because these are likely to be seen as national-security-sensitive categories.
  • Expect and allocate budget for significantly higher prevailing wages payable to H-1B, E-3 and H-1B1 workers and employees sponsored for green cards under the PERM labor certification program.
  • Estimate and propose additional budget allocations for the increased expenditures that the business may incur because of any newly announced federal immigration policies.

The anticipated immigration changes from the coming administration, while adding new burdens and responsibilities, nonetheless offer mobility leaders an opportunity to demonstrate to their leaders and foreign workers through thoughtful programmatic changes and compassionate support that you are there for them no matter the challenges and obstacles which may lie ahead. In these endeavors, Vialto Partners is ready to offer actionable advice, guidance, and assistance.

There is at least one groundbreaking, low-hanging-fruit solution to modernize U.S. immigration policy for the digital age — one that requires no action by Congress.

David Bier, Director of Immigration Studies at the Cato Institute, and leading immigration lawyers (Cornell Law Professor Stephen Yale-Loehr, Vialto Law’s Peter Choi and this blogger) published a proposal today (accessible from the Cato Institute’s website) that addresses a critical gap in current immigration law: the uncertain legal status of digital nomads and business travelers who need to stay connected to their foreign employers while temporarily visiting the United States for business or pleasure.

The Current Challenge

As David Bier explains in today’s Cato Daily Podcast, U.S. immigration law fails to account for modern-day facts of life. Business travelers, tourists and digital nomads face uncertainty when accessing their work emails or participating in transnational virtual meetings while on U.S. soil, potentially risking (1) the denial of visitor visas, (2) refusal of entry to the U.S., and (3) government accusations that such activities violate their U.S. nonimmigrant status.

The Proposed Solution

The authors’ proposal calls for the Department of State and Department of Homeland Security (DHS), including DHS’s component agencies, U.S. Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP), to issue clear policy guidance that would:

  • Allow visitors to use digital technology for remote work connected to foreign employment.
  • Maintain visitor status (B-1 business visitors, B-2 visitors for pleasure or ESTA visa waiver entries in WB [waiver business] and WT {waiver tourist]) as long as remote work is incidental to the primary purpose of the visit.
  • Permit stays of up to six months for qualifying digital nomads and visitors.

Suggested revision to the Department of State’s Foreign Affairs Manual:

9 FAM 402.2-2(F) (U) Importance of Facilitating International Travel

[Proposed new section] b. . . . In facilitating and promoting legitimate international travel, consular officers should recognize that noncitizens applying for visitor visas routinely connect online even during temporary travels to the United States. Thus, a noncitizen’s intent to use digital technology remotely from the United States in connection with preexisting employment abroad does not preclude eligibility for issuance of a nonimmigrant visa as a B-1 visitor for business or B-2 visitor for pleasure under INA § 101(a)(15)(B) as long as such intent is incidental to the lawful primary purpose of the temporary visit. Similarly, prior entries to the United States of temporary visitors in B-1 or B-2 visa status, or in WT (waiver tourist) or WB (waiver business) status under the Visa Waiver Permanent Program, where such incidental use of remote technology occurred, do not preclude issuance of visitor visas under the B classification.

This policy change offers several benefits:

Economic Impact

  • Generates significant tourism revenue, with foreign visitors spending approximately $225 billion in 2023.
  • Attracts high-income digital nomads who typically spend more than average tourists.

Innovation and Knowledge Transfer

  • Reinforces the primacy of the U.S. as a hub for global talent and innovation.
  • Facilitates international collaboration and knowledge exchange.
  • Aligns U.S. policy with global trends, as dozens of countries already offer digital nomad visas or admissions policies.

Why Support Is Needed

Although not requiring the promulgation of a regulation, the proposal nonetheless requires coordinated action from multiple federal agencies:

  • DHS
  • USCIS
  • CBP
  • Department of State and U.S. embassies and consulates worldwide

Business leaders, industry associations, and individuals can help advance this initiative by:

  • Advocating for the policy change
  • Sharing experiences about the impact of current restrictions
  • Supporting the proposal authors’ and the Cato Institute’s efforts to modernize immigration policy

Time for Action

While comprehensive immigration reform remains a long-term goal, this policy guidance offers an immediate solution to a pressing need. The proposal addresses modern digital realities and aligns with existing legal frameworks (including a recognition, as the authors note, that tax law requirements must still be satisfied).

The authors’ proposal represents a practical step toward modernizing U.S. immigration policy. By urging adoption of a digital nomad admissions policy, businesses and individuals can help shape a more welcoming environment for global talent while maintaining appropriate immigration controls.

The future of work is increasingly digital and mobile. It’s time for U.S. immigration policy to reflect this reality and maintain America’s position as a top destination that welcomes global talent and promotes innovation, tourism and domestic employment.

By Angelo Paparelli and Manish Daftari

[Blogger’s note: This article, co-authored by Manish Daftari and me, originally appeared on October 1, here. It is republished courtesy of Vialto Partners.]

Recent developments have upended many of our earlier predictions of the likely post-election immigration landscape in the United States.

These include:

  • Former President Donald Trump’s selection of Ohio Senator J.D. Vance as running mate. Mr. Vance has supported restrictions on legal and illegal immigration.
  • Mr. Trump’s announcement that he is not bound by proposals outlined in Project 2025 (apparently including those restricting legal and illegal immigration), and his recent suggestions of new green card options for noncitizens who have graduated from U.S. colleges and universities, and of additional unspecified immigration avenues prompted, in part, by advances in AI.
  • President Biden’s decision in July announcing that he would not seek reelection, his endorsement of Vice President Kamala Harris as the Democratic Party’s nominee, and her choice of Minnesota Governor Tim Walz for Vice President.
  • Vice President Harris’s support for strict border controls coupled with an “earned” pathway for undocumented noncitizens to gain legal status and the right to work.
  • Gov. Walz’s positions on immigration—both as a former Congressman and as Governor— suggest broad support for legal immigration and protections for the undocumented population. 

With the parties’ conventions concluded, both campaigns in full swing, and early voting already underway, several electoral outcomes are possible. Mobility leaders must therefore prepare for all potential scenarios and brace themselves for the new immigration opportunities and daunting challenges that loom on the horizon.

Will there be an election “trifecta?”

The way forward depends greatly on whether either party wins the presidency and enough down-ballot slots in the House and Senate to achieve a trifecta, i.e., control of both houses of Congress and the White House.  

With a trifecta, far-reaching immigration legislation – ranging from highly welcoming to highly restrictive – is attainable, whereas split control likely would perpetuate the current legislative gridlock. This in turn would maintain the continued practice of executive orders that at times become new employment-based immigration programs, but increasingly are struck down by the federal courts.

What role will federal courts play?

Also uncertain is the effect of recent U.S. Supreme Court decisions empowering individual federal judges to interpret and declare immigration law without necessarily deferring to long-standing, or new, immigration agency regulations and policies.  

With more than 600 sitting federal district judges and 12 circuit courts of appeal, it is foreseeable that multiple federal district judges might issue divergent interpretations of immigration statutes and executive policies (with some imposing nationwide injunctions). It is also predictable that various federal circuit courts of appeal may likewise issue conflicting rulings, thus requiring review by the Supreme Court. 

Immigration stakeholders, especially businesses operating nationwide, may therefore be required to monitor differing judicial interpretations based on the jurisdictional geographies of various circuit courts of appeal, and rely even more on legal counsel to help guide their immigration strategic planning. 

Ironically, if immigration law interpretations by the federal courts become a patchwork quilt of conflicting decisions, pressure may grow for Congress to revive and ultimately enact a single Article I Immigration Court (similar to the U.S. Bankruptcy Court) with broad authority to interpret, declare and harmonize immigration laws and agency regulations on a national basis.

Enhanced border enforcement—a given

Though rarely in agreement, Republicans and Democrats are nonetheless aligned on the need for significantly enhanced controls over illegal immigration, particularly at the southern border. Despite the failure of a bipartisan border enforcement bill in the current Congress, both parties have promised to redouble efforts to stanch the flow of unauthorized noncitizens into the U.S., particularly with additional limits on the ability to apply for asylum. 

In June President Biden announced the temporary suspension of entry of noncitizens who enter unlawfully through the southern border, restricted their access to asylum, and ordered the speedier processing of asylum applications.  

Kamala Harris committed in her acceptance speech at the Democratic national convention (DNC) that she would “secure our border,” while pledging to “reform our broken immigration system . . .[and] create an earned pathway to citizenship . . .”  

Donald Trump and running mate Sen. J.D. Vance each appeared recently at the still-unfinished border wall adjoining the Arizona-Mexico boundary and vowed to stop illegal entries. They also renewed pledges to continue the identification and deportation of individuals who have entered the US illegally.

Harris-Walz on immigration 

Besides stricter U.S. border enforcement, Kamala Harris and Tim Walz are likely to support legislation and executive actions that expand employment-based immigration avenues. 

Ms. Harris is an opponent of then-President Trump’s attempt to rescind DACA (Deferred Action for Childhood Arrivals), and a leading co-sponsor in the Senate of the Fairness for High-Skilled Immigrants Act, a bill which would have alleviated visa backlogs for family- and employment-based green cards.  

As Vice President, Ms. Harris supported President Biden’s Executive Order 14110 on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence,” which included several directives intended to remove immigration-related impediments that make the U.S. less open to noncitizen talent in the fields of artificial intelligence and other “critical and emerging technologies.” The Biden-Harris administration also announced additional forms of relief to certain DACA beneficiaries and with U.S. college degrees (as did the State Department).  

These actions, together with her speech at the DNC, suggest that she will promote legislation and executive actions that support comprehensive “reform of our broken immigration system” – especially by creating or expanding access to work visas, employment- and family-based immigrant visa categories and work permits.

As former member of Congress and the sitting governor of Minnesota, Mr. Walz has likewise supported more open and protective immigration policies, including a path to citizenship status for DACA beneficiaries, essential workers and noncitizens granted TPS (Temporary Protected Status), and signed state legislation authorizing the issuance of Minnesota driver’s licenses to undocumented individuals.

Trump-Vance on immigration

Our earlier article extensively discussed Project 2025’s “Mandate for Leadership,” describing it as a possible predictor of immigration policies in a second Trump Administration.  This discussion was premised on the authorship of several chapters of the Mandate by officials in positions of leadership during Mr. Trump’s first four-year term.  

The former president, however, has recently stated that he has “nothing to do” with Project 2025 and disagrees with unspecified parts of it; furthermore, an emailed  press statement from his campaign “greatly welcome[d]” Project 2025’s “demise.” Although many Democrats have challenged that denial, we are unable to reliably predict the post-election impact, if any, of Project 2025 in a second Trump term. 

What remains, however, are the transcripts of Mr. Trump’s two interviews with Time Magazine, in which he proposed to deploy the National Guard to apprehend, detain and remove vast numbers of unauthorized noncitizens encountered in the interior of the country, and the July 8, 2024 Republican Party Platform.  

Chapter Two of the Republican platform makes the overarching promise to “SEAL THE BORDER, AND STOP THE MIGRANT INVASION [all caps in the original].” Included among its planks are “an aggressive plan to stop the open-border policies,” as well as commitments to “bring back the travel ban,” “begin the largest deportation program in American history,” “prioritize merit-based immigration,” and “[ensure that] those admitted to our country contribute positively to our society and economy, and never become a drain on public resources, . . . [while ending] chain migration, and [putting] American Workers first. . . [with capital letters changed to lowercase].”

Concerning legal immigration, Mr. Trump forecasted in a podcast interview (as also reported and welcomed in the Indian press) that during his second term: 

“What I want to do and what I will do is, [that if] you graduate from a college, I think you should get a green card automatically as part of your diploma, a green card to be able to stay in this country.” 

He added that this proposal would also include graduates from two-year junior colleges and doctoral programs, stating:

“I know of stories where people graduated from a top college or from a college, and they desperately want to stay here… and they can’t. They go back to India, they go back to China. They do the same basic company in those places and they become multibillionaires employing thousands and thousands of people.”

Shortly after the podcast aired, however, Mr. Trump’s campaign press secretary, Karoline Leavitt, issued a statement to clarify that his plan would include an “aggressive vetting process,” to exclude “all communists, radical Islamists, Hamas supporters, America haters and public charges.” She added:

“[He] believes [that] only after such vetting has taken place, we ought to keep the most skilled graduates who can make significant contributions to America. This would only apply to the most thoroughly vetted college graduates who would never undercut American wages or workers.”

Mr. Trump spoke more broadly about expanding employment-based legal immigration entries during an August 15, 2024 press conference: 

“’We’re going to let a lot of people come in, because we need more people, especially with AI coming. The farmers need it, everybody needs it but we’re going to make sure they’re not murderers and drug dealers.”

Senator J.D. Vance, Mr. Trump’s running mate, has reportedly espoused largely restrictive views on immigration, including interior roundups and mass deportations, and crackdowns on visa overstays (having sponsored the Timely Departure Act, which would have required applicants for certain visas to post and forfeit a bond of $5,000 to $15,000 if they remained beyond their visa admission period).  

Mr. Vance has also criticized the H-1B visa program, labeling it as “an unholy alliance between government and our biggest corporations.” He acknowledged that as a venture capitalist the companies in which he invested made use of this program, but has maintained that he never encouraged the use of the H-1B.

What should mobility leaders do now to prepare for the post-election aftermath?

While we wait for the November 5th vote and the certification of final election results, there are several measures which companies, in consultation with their legal counsel, should consider, and if appropriate act on, in anticipation that major immigration changes could occur in early 2025:

Visa and entry bans

Under a new Trump administration, there is a strong possibility that prior visa and entry bans will  be reinstated.  Accordingly, there are several steps mobility leaders may wish to consider to prepare for potential reinstatement of these bans:

  • Identify all employees who may be impacted by future visa and entry bans.  Based on the previous bans that were implemented during the first Trump administration, these countries will likely include Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.  
  • Once the impacted employees are identified, companies (as advised by their counsel) should consider discussing with their U.S.-based noncitizen employees (irrespective of visa or residency status) the possible need to limit international travel.  Nonimmigrant employees from the identified countries who do not have a work visa stamp in their passport or have a visa that will expire before the end of the year should consider applying for a visa at a U.S. consulate abroad before the end of 2024. 

Temporary Protected Status

For employees who are currently on work permits in the United States under Temporary Protected Status (TPS), there is a risk that a second Trump administration will eliminate existing TPS designations for some  countries.  Mobility leaders should therefore consider the following steps:

  • Identify all employees who are currently working on TPS status.
  • For each employee, determine if there are alternative forms of employment authorization or work visa options available.  Now is an optimal time in the currently favorable adjudicative environment to consider categories exempt from PERM labor certification such as extraordinary ability, national interest waivers and the Schedule A Group II waiver.
  • With the advice of counsel, consider sending employees abroad to work in an executive, managerial or specialized-knowledge role at an affiliate company for at least one year so that they would be eligible to return to the U.S. on an L-1 visa or as an EB1-C immigrant. 
  • If the impacted employees are not in the permanent residency process, consider starting the process before the end of 2024.

Prevailing wage changes

An incoming Trump administration may seek to reinstate a regulation under his first term (later rescinded by President Biden) that would have significantly raised prevailing wages for the H-1B H-1B1, E-3, and PERM programs.   In order to address this potential impact, employers should consider the following measures in consultation with their counsel:

  • Identify all affected noncitizen employees who are paid below an annual wage of $100,000. While it is uncertain what the proposed prevailing wages will be, the $100,000 annual wage works as a starting point.
  • For these impacted employees, determine if there are alternative visa options such as a spousal employment authorization document (EAD), TN, E-3, and categories exempt from PERM labor certification such as extraordinary ability and national interest waivers.
  • For these impacted employees, determine if their salaries could be raised above $100,000 within the next 1-2 years should prevailing wages be increased.
  • If the wages of these potentially impacted employees cannot be raised, consider sending employees abroad to an affiliate company for one year so that they would be eligible to return to the US on an L-1 nonimmigrant visa or EB1-C immigrant visa. In short, consider planning a future foreign assignment in the event of significant prevailing wage increases.

Possible reversal of Biden and Obama executive actions

Employers should anticipate that if Mr. Trump is elected, several executive actions by Democratic presidents may be at risk of elimination or restriction.  These include DACA (Deferred Action for Childhood Arrivals), and special parole authority under the Immigration and Nationality Act benefiting particular nationalities (such as citizens of Ukraine, Afghanistan, Venezuela, Cuba, Nicaragua, and Haiti, the spouses, children, and parents of active duty military members, veterans, or those in the Selected Reserve of the U.S. Armed Forces,  and the June 18, 2024 executive action allowing for parole in place for noncitizen spouses and children of U.S. citizens, who have resided in the U.S. for at least 10 years, and for waivers of visa ineligibility and inadmissibility to certain graduates of U.S. colleges and universities.

In order to prepare for potentially adverse actions affecting these categories of noncitizens by an incoming Trump Administration, or by the federal courts, employers should consult with their attorneys to consider whether the following options may be available:

  • Determine if there are alternative visa options such as an EAD based on spouse’s work authorization, TN, E-3, etc., and categories exempt from PERM labor certification such as extraordinary ability, national interest waivers and the Schedule A Group II waiver.
  • Consider assignments to other countries with more welcoming immigration options, such as Canada or Mexico, to allow for remote work on US projects, or possible one-year abroad options in executive, managerial or specialized-knowledge positions to qualify for L-1 nonimmigrant or EB-1C immigrant visa eligibility after a year abroad. or possible “D3” inadmissibility waivers on an expedited basis for noncitizens with U.S. degrees, as allowed by recent Department of State guidance in the Foreign Affairs Manual. 

Possible expansion of Biden and Obama executive actions

If Vice President Harris is elected but control of Congress remains divided or is held solely by Republicans, comprehensive immigration reforms are much less likely.  In that case, she may well announce additional executive actions to benefit discrete groups of noncitizens, such as the undocumented parents of U.S. citizens and permanent residents, and noncitizens who were age-barred under the DACA program.  Such actions – although subject to possible reversal by the courts – would open new pathways for companies to hire now-ineligible workers and help mitigate ongoing demographic changes that portend a shrinking U.S. workforce.  Companies should therefore consider developing recruitment strategies and channels to attract such workers and enlist their immigration counsel to help apply on their behalf.

Continuing focus on immigration worksite compliance 

Whether Republicans or Democrats prevail in November, employers in the U.S. should anticipate that federal immigration authorities will continue to investigate and enforce existing immigration laws in the coming years.   

These laws still prohibit the knowing employment of unauthorized workers, penalize acts of unlawful discrimination based on citizenship status, national origin or alienage, and impose sanctions on employers that fail to maintain required business records such as Form I-9s, E-Verify records and employment-based requests for immigration benefits.  

U.S.-based businesses should therefore consider taking prompt action to review their immigration compliance policies and practices, and address any identified lapses.  Special focus should be given to employer programs or conduct that DHS or DOJ investigators may view as favoring noncitizens over U.S. citizens and lawfully authorized workers such as asylees and refugees.  

In short, we believe that any new administration will likely perceive that if the U.S. is to stem the flow of illegal immigration, then stricter border controls and enhanced worksite enforcement must go hand in hand.

Conclusion

As can be seen, no matter the outcome of the November election, the immigration landscape is likely to witness monumental changes in 2025. Mobility leaders and their organizations should therefore begin developing suitable strategies now. 

Vindication! In dollars and sense.

I blogged last year about a settlement in which the U.S. Department of Justice had alleged under the False Claims Act that a business owed the federal government a legal obligation to apply for a work visa with a higher filing fee rather than a visitor visa whose filing fee is lower.

I called hogwash on the allegation. See “DOJ faults employer for choosing a visa category with lower filing fees.”

On August 12, 2024 the Ninth Circuit Court of Appeals agreed with me, stating:

“In this case, because the statute requires an established legal obligation, it is not sufficient that defendants applied for the wrong visas or may face liability for violating applicable regulations. They had no ‘established duty’ to pay for visas for which they did not apply. 31 U.S.C. § 3729(b)(3). Indeed, the only specific, legal obligation defendants had at the time they applied for the B-2 visas was to pay the application fees for those visas.”

The Ninth Circuit’s decision also cites similar rulings in other federal circuits.

On October 30, 2023, President Biden issued Executive Order 14110 on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence.”

EO 14110 included several directives intended to remove immigration-related impediments that make the U.S. less welcoming to noncitizen talent in the fields of artificial intelligence and other “critical and emerging technologies.”

Among the presidential commands, the Secretary of Labor was ordered to “publish a request for information (RFI) to solicit public input, including from industry and worker-advocate communities, identifying AI and other STEM-related occupations, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able, and qualified United States workers.”

In reply, the Department of Labor (DOL) on December 15, 2023 published a request for information (RFI), which invited public comment on or before February 20 2024 asking for stakeholder input on ways to expand an exemption from the standard PERM labor certification recruitment process known as “Schedule A.” If Schedule A is expanded, the change could alleviate labor shortages and shave months, if not years, from a tedious and slow PERM recruitment and employment-based green card application process.

Unfortunately, however, at the request of the AFL-CIO, DOL extended the deadline for comment by 90 extra days, that is, until today.

This blogger, together with David Bier of the Cato Institute and Sam Peak of Americans for Prosperity Foundation, have submitted an extensive comment on several ways to expand Schedule A last week.

DOL must act swiftly to amend Schedule A. Navigating a final rule through the OMB typically takes six months or more.

If the election in November restores former president Trump to the White House, the prospect for an expanded Schedule A are in doubt, as I explain in this article, “Elections Have Consequences: Predicting and Preparing for US Immigration Changes,” coauthored by my Vialto Partners colleague, Manish Daftari.

The time for swift DOL action is now.

Waking up today before the alarm sounded and reaching for my smartphone, I realized that it is March 15, 2024.

Students of Roman history and of Shakespeare know March 15 as the “Ides” (or middle) of March – the day in 44 BCE when Brutus, Cassius and several senators assassinated Julius Caesar.

As he lay dying, Caesar recalled the soothsayer’s earlier warning: “Beware the Ides of March.”

Shakespeare describes it this way in Act 3, Scene 1:

CAESAR: The ides of March are come.

SOOTHSAYER: Ay, Caesar; but not gone.

Tradition says that this is also the day in the ancient Roman calendar when debts must be repaid, and slates wiped clean.

For me, March 15 has a poignant meaning for it is the anniversary of my mother’s death. Rose Lopetrone Paparelli (whose mother’s family name, ironically, was Romano) would have been 102 years old today.

My indebtedness to Mom, however, can never be repaid, only paid forward.

Mom instilled in me a love of history and literature. Indeed, she recounted to me that she dropped her then-boyfriend in favor of my father because the rejected beau spoke so poorly, and my dad (though not a history buff) had the gift of gab.

More than these gifts, however, Mom taught me that everyone deserves respect, and that disrespect must be challenged. Although many examples could be cited, one vignette stands out in my memory.

As kids growing up in the inner city of 1950s Detroit, my sister, brother and I only rarely had the chance to witness Michigan’s namesake aquatic feature (derived from the Chippewa word “Michigama,” meaning “great water” or “large lake”). Thus, we were overjoyed when we learned that our parents would drive us to a lakeside cottage “up north” for a week’s family vacation.

Before reaching the cottage, my dad stopped for gas. In the days before self-service, every gas station featured an attendant who filled up the tank. My dad (the one with the gift of gab), sitting in the driver’s seat, struck up a conversation with the attendant, while Mom rode “shotgun” and the three kids sat in the back.

Dad asked the fellow, a muscular white man in his 20s, how he liked living in rural Michigan. The man smiled and replied, “I love it,” but then made a racist remark.

Without a moment’s hesitation, Mom said: “now mister, that’s not nice. We are all God’s children.” The man fell silent; then he apologized.

In just a few words, Mom spoke truth to power, and taught me to stand up for the disenfranchised. In no small part, she is why I became a lawyer, and chose immigration law as my specialty.

Because of her, I will forever be aware of the Ides of March. For me, the Ides of March “are come . . . but [never] gone.”