By Angelo A. Paparelli and Kevin J. Andrews

On May 26, 2026, we submitted a formal comment to the U.S. Department of Labor (DOL) opposing its proposed rule, Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals (Docket No. ETA-2026-0001), which would significantly raise prevailing wage floors for the H-1B, H-1B1, E-3, and PERM programs. We did so in our personal capacities, drawing on our combined decades of experience in employment-based immigration law. The comment period has now closed. DOL has heard from the regulated community. We await its response.

What DOL Is Proposing — and Why It Fails

The proposed rule would shift the percentile thresholds for all four wage levels substantially upward: Wage Level I would jump from the 17th to the 34th percentile, Level II from the 34th to the 52nd, Level III from the 50th to the 70th, and Level IV from the 67th to the 88th percentile. The stated rationale is that a higher wage percentile is a reasonable proxy for a higher level of skill, education, and experience.

The problem — and it is a foundational one — is that the data source DOL uses to set those percentiles, the Occupational Employment and Wage Statistics (OEWS) survey, does not measure skill, education, or experience. The Bureau of Labor Statistics itself says so explicitly. DOL acknowledges this twice in the very same rulemaking, conceding that the underlying OEWS data do not collect information on worker education or experience, and that the existing four-tier structure does not sufficiently differentiate among workers based on experience, education, and responsibility. Raising the percentile does not cure a structural data gap — it enlarges the wage obligation anchored to a system that cannot see skill.

Eight Independent Objections

Our comment identifies eight independent defects in the NPRM, each sufficient on its own to warrant withdrawal or substantial revision:

  1. OEWS cannot support skill-based wage leveling — and DOL admits it.
  2. Shifting percentiles enlarges the error — it does not fix it. DOL’s own figures show Level I wages rising 33%, with an estimated average annual wage transfer of approximately $14,000 per worker.
  3. No alternative data source cures the defect — administrative earnings data (W-2s, tax records, and longitudinal employer-household data) are retrospective, protected by federal confidentiality statutes, and still don’t capture job-level skill structure.
  4. The economic analysis is inadequate — the Regulatory Flexibility Analysis fails to model distributional, small-entity, and offshoring effects, even as DOL itself concedes a “significant economic impact on a substantial number of small entities.” Peer-reviewed research documents that H-1B restrictions drive firms to expand employment at foreign affiliates — an offshoring effect DOL does not model.
  5. OEWS is structurally lagged — built on a three-year rolling panel, it imports delay into every determination it governs, precisely as occupational skill demands are shifting faster than ever.
  6. The rule risks recreating a cross-occupation wage cascade Congress deliberately repealed in 1991 — the Miscellaneous and Technical Immigration and Naturalization Amendments specifically struck the broader wage obligation, narrowing it to the H-1B worker. Under Loper Bright Enterprises v. Raimondo (2024), DOL’s interpretation receives no judicial deference, and this is not a persuasive reading of the statute.
  7. Independent APA defects — including unexplained line-drawing in the chosen percentiles, failure to consider reliance interests, failure to treat alternative wage sources equally, inadequate engagement with existing enforcement architecture, and major-questions concerns under West Virginia v. EPA.
  8. The OEWS data gap calls for restoring and modernizing the Dictionary of Occupational Titles. — we do not merely identify what is broken. We point toward a remedy. The Department once maintained an instrument that captured exactly what OEWS omits: the Dictionary of Occupational Titles (DOT), last revised in 1991, which classified more than 12,700 occupations and recorded each one’s education, training, and skill requirements at the level of the job itself. DOL did not abandon it because the concept was unsound. We urge the Department, through a public-private partnership using modern data tools, to build a granular, occupation-level framework capable of actually supporting skill-based wage leveling — before imposing obligations the current data cannot justify.

The Stakes Are Real

As Angelo Paparelli and Stephen Yale-Loehr argued in a May 20, 2026 op-ed in The Hill, “A proposal to change foreign workers’ wages could threaten American jobs,” the rule’s design would pressure employers to raise wages for similarly situated U.S. workers or risk the appearance of favoritism toward visa holders — recreating indirectly the very cross-occupation wage obligation Congress eliminated over thirty years ago. And because the rule keys selection pressure to base salary alone, it systematically disadvantages startups, nonprofits, and academic research employers that compete for talent through equity or mission rather than cash, while entrenching large, well-capitalized incumbents.

A Useful Tool: h1bwagerule.org

We are not alone in raising these concerns. The Institute for Progress has assembled h1bwagerule.org, a comprehensive catalogue of all comments filed in this rulemaking, organized and sorted by the topics addressed. Given how important the prevailing wage issue is to the integrity of the U.S. high-skilled immigration system — and how consequential substantive public comments can be in laying out the considered views of the regulated community — we are hopeful that h1bwagerule.org will prove a genuinely useful resource for employers, federal litigators, immigration practitioners, policymakers, scholars, and anyone following this rulemaking closely.

What We Are Asking DOL to Do

We have asked DOL to take one of three actions:

  1. Withdraw the proposed rule outright.
  2. Substantially delay implementation pending development of an adequate, granular data foundation capable of actually supporting wage leveling.
  3. At a minimum, respond individually in any final rule to each of the numbered objections in the administrative record, and produce a complete economic analysis that models distributional effects by industry and firm size, addresses the offshoring response, and presents feasible alternatives as the Regulatory Flexibility Act requires.

Now We Wait

The comment period has closed. The arguments are in the record. The Department must now decide whether to finalize a rule built on a data foundation it has conceded is inadequate, or to step back and do this right. The prevailing wage framework is not a technicality — it is the cornerstone of the statutory promise that the H-1B program will not harm the wages and working conditions of U.S. workers. Getting it right matters. We remain engaged, and we will continue to report here on how this consequential rulemaking unfolds.

Kevin J. Andrews and Angelo A. Paparelli are immigration attorneys with more than a decade each of experience representing employers and individuals in H-1B, H-1B1, E-3, and PERM matters. Their full comment is available in the public record at regulations.gov, Docket No. ETA-2026-0001.

On May 21, 2026 U.S. Citizenship and Immigration Services issued a startling memorandum (“Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process”).

As the memo’s title boldly proclaims, USCIS doubles down on its contention that adjustment of status — the process whereby the great majority of noncitizens have obtained lawful permanent resident (green card) status for decades — is “extraordinary,” a matter of “administrative grace,” and “not designed to supersede the regular consular visa-issuing process.”

That rhetoric may be accurate as a description of how the agency wants officers to think, but it is much harder to square with the case law that USCIS cites and the statute Congress has actually given us.

Over the last several decades, Congress has repeatedly amended the Immigration and Nationality Act (INA) in ways that weave adjustment of status into the core architecture of the immigration system, especially in the employment-based context.

INA Section 245(i) fundamentally undercuts the notion that adjustment of status is “extraordinary” by design. Congress deliberately created a pathway allowing individuals who entered without inspection or violated status — precisely the categories most disfavored in discretionary frameworks — to adjust status inside the United States upon payment of a penalty fee. That is not the architecture of a narrow, exceptional remedy; it is a mass-eligibility mechanism intended to normalize in-country processing for a broad population. By overriding core admissibility barriers and preserving eligibility through grandfathering, § 245(i) reflects a legislative judgment that adjustment should operate as a pragmatic, widely available solution — not a rare or unusual indulgence.

INA Section 245(k) explicitly anticipates up to 180 days of unlawful status, unauthorized employment, or other violations after admission and says, in effect, “you can still adjust.” That is not how you treat a rare indulgence; that is how you normalize real‑world bumps in an otherwise meritorious case.

AC‑21 portability likewise assumes that I‑485s will remain pending long enough that job changes are routine and then protects those applicants when they move to same or similar employment after 180 days. Congress does not build a detailed portability regime around a marginal, disfavored benefit. It does that when the benefit is central to how the system actually functions for workers and their families.

The Child Status Protection Act goes even further by tying core “age‑freezing” protections to the filing and acceptance of an adjustment application. If adjustment were simply a peripheral bypass to “real” immigration through consulates, it would be odd for Congress to anchor such a critical safeguard to the domestic AOS filing date.

The EB-5 immigrant investor program—especially as modernized by the EB-5 Reform and Integrity Act (RIA) — similarly contradicts the “extraordinary remedy” narrative by embedding adjustment of status into the program’s core functionality. Post-RIA features like visa set-asides and concurrent filing assume that investors already in the United States will routinely pursue adjustment, leveraging work and travel authorization while their petitions are adjudicated. This is not incidental; it is central to how the program attracts and retains capital. Treating AOS as exceptional in this context misaligns with Congress’s economic design, which depends on predictability and accessibility of in-country processing as a standard, not extraordinary, pathway for qualified investors.

And INA Section 245(c)’s “no fault” and “technical reasons” carve‑outs confirm that not every deviation from perfect status maintenance is meant to be treated as a heavy adverse factor that must be offset by “unusual or even outstanding equities.”

None of this denies that adjustment of status is discretionary. But taken together, these provisions make it increasingly difficult to sustain the claim — repeated in today’s memo –that adjustment is, in 2026, best understood as extraordinary relief that must be kept in a subordinate place behind consular processing.

If USCIS wants to lean on that narrative, it needs to grapple openly with how 245(i), 245(k), AC‑21, CSPA, the RIA, and 245(c) have transformed adjustment from a narrow act of grace into an integral, congressionally‑structured pathway.

The Department of Homeland Security’s new wage-weighted H-1B cap selection rule and the presidential proclamation imposing a $100,000 H-1B fee require a structural shift in how U.S. employers must approach global talent acquisition.

While the three civil suits challenging the $100,000 rule play out in the federal courts, and anticipated litigation seeking to overturn the rule would be credible and legally strong, timing realities make it uncertain that courts will enjoin the proclamation or the rule before the first H-1B lottery selection cycle in April 2026.

Mobility leaders should therefore plan for compliance while monitoring litigation closely. This article focuses on the wage-weighted lottery rule and explains why it is vulnerable, why early injunctions are unlikely, and how employers can adapt recruiting and workforce strategies under a wage-prioritized regime.

1.      DHS Responses to Opposition: Why They Matter

The Department of Homeland Security (DHS) received extensive and substantive opposition during the 30-day notice-and-comment period, particularly from universities, healthcare systems, research institutions, startups, and nonprofit employers. The most consequential objections focused on structural and evidentiary concerns rather than ideology.

Commenters challenged DHS on several fronts, including the use of the Labor Department’s Occupational Employment and Wage Statistics (OEWS) wage levels as a proxy for skill, the disproportionate impact on early-career professionals, regional and sectoral distortions favoring capital-rich employers in high-wage metropolitan areas, and the creation of new incentives to game Standard Occupational Classification (SOC) codes, locations, and wage determinations.

DHS finalized the rule without modifying the regulatory text in any way, asserting that wage weighting better aligns H-1B selection with congressional intent to protect U.S. workers. From a litigation standpoint, the issue is not so much DHS’s disagreement with commenters, but whether DHS meaningfully grappled with the strongest objections—particularly those questioning the empirical and statutory basis for using wage levels at the selection stage. The legal vulnerability lies not necessarily in policy disagreement, but in whether DHS substantiated its core assumptions.

2.      Strength of Litigation Challenging the Rule

Properly framed, the prospects for success in likely litigation challenging the wage-weighted selection rule are strong, especially in the post-Loper Bright judicial environment in which courts rule on legal arguments without reverential deference to agency interpretations.

Challengers can argue under the Administrative Procedure Act that the rule is arbitrary, capricious and unlawful because DHS relied on its own asserted but unsubstantiated causal narratives—that the random lottery allegedly enables abuse, and that wage weighting will reverse perceived labor-market harm—without demonstrating a clear link between H-1B lottery selection mechanics, alleged wage suppression, and the predicted corrective effect.

Statutory authority arguments are also strengthened. Congress embedded wage protections primarily through the Labor Condition Application framework administered by the Department of Labor. Using wage levels as a selection preference may therefore be viewed by the courts as labor-market engineering rather than a reasonable lottery selection process.

3. Ripeness: Why Early Injunctions Are Unlikely

Despite the merits of foreseeable litigation, motions for preliminary injunction filed before the selection process occurs are unlikely to succeed. While the rule constitutes final agency action and is therefore reviewable, the courts may conclude that the matter is not ripe for judicial decision because injunctive relief requires convincing proof of concrete and imminent harm.

Before registration opens and selections are run, employer harm arguably remains speculative. Courts rarely consider compliance planning costs as irreparable injury. Federal judges are more likely to be receptive, however, to motions for preliminary injunctions after registration closes or after selections are announced to identifiable plaintiffs.

4. Practical Planning and Alternative Strategies

Given the likelihood that both the weighted selection rule and a $100,000 wage requirement will shape hiring outcomes, employers should adopt a portfolio-based approach rather than a single, uniform response.

Some employers will consider selectively increasing wages for mission-critical roles. This requires careful attention to internal equity and pay compression—where raising wages for new noncitizen hires narrows or eliminates pay differentials with more senior or long-tenured employees.

At the same time, employers should consider expanding non-H-1B pathways, including concurrent cap-exempt H-1Bs, O-1 visas, treaty-based categories (i.e., Es, H-1B1s, TNs), J-1 exchange visitors, earlier L-1 planning, and global remote deployment and relocation models to more welcoming nations.

5. Final Thoughts and Call to Action

The weighted selection rule, particularly when layered with a $100,000 wage proclamation, is likely vulnerable in litigation. However, timing realities mean that the wage-weighted rule is unlikely to be halted by the courts before the first H-1B lottery selection cycle in April 2026.

Mobility leaders should therefore pursue a dual-track strategy:

  • Plan for compliance as though the rule will apply when registrations under the lottery are required in March 2026, and
  • Engage with counsel to monitor litigation, assess participation options, and preserve strategic flexibility if relief becomes available later.

In-house mobility leaders should therefore be working now with experienced immigration, employment, and administrative-law counsel to stress-test wage strategies, diversify talent pipelines, and ensure that registration decisions are deliberate rather than reactive.

The rule changes the process—but it does not eliminate choice. Thoughtful planning, informed risk-taking, and early legal engagement will distinguish employers who adapt from those who are forced to react.

[Blogger’s note: The H-1B Notice of Proposed Rulemaking (NPRM)(” Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions”) closed for comments October 27, 2025. More than 9,000 have been submitted with additional comments possible on the lottery registration form until November 24, 2025. On varying and at times overlapping or contrary grounds, several organization submitted comments opposing the NPRM. You can read them here: The American Immigration Lawyers Association/American Immigration Council; the Compete America Coalition; the Society for Human Resources Management; the National Foundation for American Policy; the Citizens Rulemaking Alliance; and ITServe Alliance all opposed the NPRM. Writing as a private citizen, taxpayer and immigration lawyer, I did as well. My comment follows.]

Comment in Opposition to DHS/USCIS Proposed Rule
DHS Docket No. USCIS‑2025‑0040
Weighted Selection Process for Registrants and Petitioners Seeking to File Cap‑Subject H‑1B Petitions

To the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services:

By way of introduction, I am an American citizen and taxpayer who is licensed to practice law in the states of California, Michigan, and New York, and in the District of Columbia.  I have practiced U.S. immigration and nationality law exclusively for more than four decades and have published several articles on the H-1B visa category since its incorporation into the Immigration and Nationality Act (INA) with the enactment of the Immigration Act of 1990.

I write this comment solely on my own behalf and submit it in respectful opposition to the proposed rule published on September 24, 2025, that would replace the longstanding random H‑1B lottery with a wage‑weighted selection system.

While the stated goal of promoting highly skilled and highly paid workers is commendable, this proposal represents an overly narrow and economically disruptive departure from both the INA’s statutory design and the real needs of the U.S. economy.

The use of Department of Labor wage levels as a proxy for “merit” misunderstands the structure of the modern labor market. Wage levels reflect experience, tenure or managerial responsibilities more than skill or innovation potential. As such, the rule would systematically disadvantage start‑ups, small businesses, nonprofit research institutions, schools, health care providers and emerging sectors that rely on hiring recent graduates and early‑career professionals—workers who are often at wage levels I or II but contribute significantly to the needs of American consumers and to U.S. innovation, particularly in engineering, biotechnology, and software development.

The proposed system’s statistical weighting—granting up to four entries for Level IV positions while significantly reducing the current selection odds for Level I—would create an uneven and exclusionary process that favors H-1B petitioning employers capable of sustaining higher pay scales. These outcomes undermine Congress’s policy of balancing competitiveness with fairness through an equal‑chance lottery designed to allocate limited visa numbers objectively.

The adverse economic effects of the proposed rule are further magnified by President Trump’s September 19, 2025, Proclamation, Restriction on Entry of Certain Nonimmigrant Workers, which imposes a $100,000 supplemental fee on new H‑1B petitions filed on or after September 21, 2025. When combined with the NPRM’s wage‑weighted selection framework, this additional fee effectively creates a dual barrier—drastically increasing the financial burden on employers while simultaneously reducing the probability of selection for those offering wages below Level III. Together, the two measures would render participation in the H‑1B program economically unfeasible for many small and mid‑sized U.S. firms, universities, and research institutions, thereby compounding the damage to labor market flexibility and American competitiveness.

Furthermore, the proposed rule risks introducing inequitable geographic and sectoral consequences because prevailing wage data are inconsistent across metropolitan areas and occupational codes. Firms in lower‑cost regions would face artificially lower selection odds even when offering competitive wages relative to local markets.

In addition, the NPRM’s reliance on Liu v. Mayorkas, 588 F. Supp. 3d 43 (D.D.C. 2022), is legally misplaced and cannot sustain the proposed rule’s radical restructuring of the H‑1B cap allocation process. Liu addressed a narrow challenge to USCIS’s implementation of its online registration system and upheld the agency’s discretion to try and prevent multiple filings for the same beneficiary. It did not authorize DHS or USCIS to abandon Congress’s plain directive in section 214(g)(3) of the INA, which mandates that visas “shall be issued … in the order in which petitions are filed.”

By using Liu to justify a wage‑based weighting of the lottery, the NPRM stretches that precedent beyond recognition. The district court in Liu merely endorsed USCIS’s administrative discretion to manage simultaneous filings during a single registration period; it did not condone a substantive prioritization scheme creating unequal selection probabilities among statutorily identical petitions. Congress deliberately preserved equality of treatment under the H‑1B cap, and neither the INA nor Liu provides a lawful basis for DHS to replace the congressionally mandated order‑of‑filing principle with an outcome that rewards employers offering higher wages.

Nothing in Liu indicates judicial acceptance of a policy that converts an equal‑chance lottery into a stratified, wage‑driven allocation system. To the contrary, the decision cautioned that agency discretion must remain consistent with statutory language and legislative purpose. The NPRM’s approach would invert that principle, effectively rewriting section 214(g)(3) under the guise of regulatory modernization.

Accordingly, this proposal exceeds the boundaries articulated in Liu and the INA, rendering the agency’s reliance on that case unsound. USCIS should withdraw the rule and preserve adherence to the statutory lottery process Congress enacted to ensure fairness, transparency, and equal opportunity in the allocation of H‑1B visas.

The NPRM is also unjustified in its citation to 6 U.S.C. § 111(b)(1)(E) of the Homeland Security Act as one of its legal bases, asserting that the Secretary of Homeland Security is charged with ensuring that “the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.” However, this provision was intended as a constraint on DHS’s regulatory power—not an expansion of it. It obligates the Department to avoid initiatives that would weaken economic stability or burden lawful sectors of American commerce.

The proposed H‑1B weighted selection rule directly conflicts with this statutory limitation. By skewing the H‑1B allocation process toward employers able to pay higher wages and the Proclamation’s $100,000 fee and away from small or mid‑sized employers that cannot match higher prevailing wage levels, the rule would exacerbate market concentration, suppress innovation from start‑ups, and disadvantage key regional industries and sectors. These foreseeable outcomes would diminish, rather than safeguard, the nation’s “overall economic security” as articulated in 6 U.S.C. § 111(b)(1)(E).

In invoking this statute to justify the rule, DHS reverses its plain purpose. The Department’s regulatory actions must enhance national economic resilience, not create new structural barriers that disrupt labor mobility and entrepreneurship. A rule that constrains U.S. employers’ ability to access specialized talent undermines the statutory mission Congress assigned to DHS. The agency should therefore withdraw this proposal as inconsistent with its governing mandate and the intent of 6 U.S.C. § 111(b)(1)(E).

Furthermore, the NPRM repeatedly reclassifies certain registrations or petitions in an arbitrary fashion to the lowest available wage level—Wage Level I—even where higher wage levels may reasonably apply. This internal downgrading occurs in three distinct parts of the proposed framework, each of which undermines the stated policy objective of rewarding higher wages and skills.

  1. Multiple Worksite Assignments – As described in the section on the required information for registration, when a single H‑1B beneficiary will work at several locations, the registrant must indicate the lowest equivalent wage level among all those worksites as the level to be used for selection. The proposal explicitly directs the employer to choose the lowest level that the proffered wage meets or exceeds, and USCIS would rely on that level when weighting the registration. This means that if one worksite qualifies for Level III wages and another only for Level I, the entire registration is treated as Level I for selection purposes, eliminating any benefit from the higher‑paid portion of the employment.
  2. Multiple Registrants for a Single Beneficiary – Under the section establishing the weighting process, USCIS would assign a wage level to a beneficiary based on “the lowest OEWS wage level among all registrations submitted on that beneficiary’s behalf.” Thus, even if one registrant offers a Level IV wage and another offers Level I, all registrations for that beneficiary are automatically weighted as Level I. The NPRM proposes this as an anti‑gaming measure, but its effect is to erase legitimate higher‑wage offers and give controlling significance to the lowest bid.
  3. Amended Petitions or Wage Adjustments – In the process‑integrity provisions, the NPRM states that USCIS may revoke a petition or deny a new filing if it appears that a petitioner sought to alter the wage level after selection to improve—or to maintain—selection odds. In this context, the rule again applies the lowest wage level associated with a given petition, worksite, or related entity. By doing so, it treats any subsequent change as evidence of inconsistency, even when ordinary business conditions explain the adjustment.

These built‑in downgrades produce a structural bias toward Level I treatment, contradicting DHS’s own assertion that the rule promotes higher wages. In practical effect, the rule converts mixed or variable wage scenarios—common among multi‑site and multi‑employer arrangements—into uniform Level I classifications. The repeated “lowest‑level” default ensures that USCIS’s weighting scheme would frequently disregard genuine Level II, III, or IV wage offers, reinforcing inequities and diluting the very incentives the Department claims to create.

For consistency with DHS’s stated policy rationale, the rule should be revised to prevent automatic downgrading when legitimate higher wage levels are part of the employment offer. Otherwise, the proposed system will systematically misclassify and undervalue complex positions while reducing selection chances for employers adhering to transparent, multi‑location business practices.

In addition, USCIS’s initial Regulatory Impact and Flexibility analysis greatly underestimated the deleterious impact of the proposed rule on small businesses and failed to propose workable mitigation strategies. The agency acknowledges that nearly one‑third of small H‑1B petitioners would experience significant harm, yet the rule does not propose exemptions, transitional relief, or offsetting mechanisms that 5 U.S.C. § 603 requires for small entities.

In light of these significant legal, economic, and equity concerns, I respectfully urge DHS and USCIS to withdraw this proposed rule in its current form. The existing beneficiary‑centric system already limits abuse while preserving fairness. Any future reform should arise from congressional deliberation or a comprehensive rulemaking that considers broader factors such as education, research value, and national interest—not merely wage level.

Respectfully submitted,

Angelo A. Paparelli

From time to time, I’m lucky to be invited to wax philosophical and legal on a wide range of U.S. immigration topics dear to my heart.

I had that good fortune twice recently.

One involved an extended conversation of about 40 minutes with Theresa Cardinal Brown, Senior Advisor on Immigration/Border Security at the Bipartisan Policy Center, and the second, about as long, with Barnaby Merrill, Editor of The Legal 500.

In “Fixing the H-1B Lottery,” I discussed with Theresa the history and present state of the H-1B lottery for professionals in specialty occupations, and explained popular and social media misunderstandings about existing H-1B provisions, as well as the safeguards against abuse already in the Immigration and Nationality Act and in Department of Labor and Department of Homeland Security regulations. I also offered suggestions on how Congress and the White House could improve the program.

With Barnaby, the topic was “US immigration changes during Trump 2.0.” I chatted about immigration history going back decades and on how the Trump Administration, with an array of executive orders, and agency memoranda, has taken steps to change immigration comprehensively and dramatically.

If you can listen and drive at the same time (without endangering yourself or others), please lend an ear or two to these — dare I humbly say, informative and engaging — podcasts.

[Blogger’s note: Reports in traditional and social media have highlighted the new focus of U.S. Customs and Border Protection inspections officers who question applicants for admission to the United States at international ports of entry and preclearance sites abroad. My colleague, Raha Torabi, and I have co-authored this post that addresses the specific concerns of business travelers.]

With US immigration policies under heightened scrutiny, business travelers and the companies abroad that dispatch them must be particularly mindful of entry requirements and restrictions when visiting the United States.

Even with a valid B-1 (business visitor) / B-2 (visitor for pleasure) visa or ESTA visa-waiver authorization allowing WB (waiver business) or WT (waiver tourist) admission,[1] each entry is assessed individually, and a traveler’s failure to adhere to permitted activities and legal constraints could result in delays, additional questioning, or even denial of entry and a future bar to reentry.

Permissible activities for business travelers[2]

Under a B-1 visa or ESTA WB authorization, business travelers may engage in the following US-based activities:

  • Attending meetings or negotiations—e.g., Meeting with clients or vendors to discuss or negotiate contracts or determine contract specifications.
  • Participating in trade shows or conferences—e.g., Attending a technology expo to network or take orders for future fulfillment outside the US.
  • Consulting with US-based associates—e.g., Offering business advice or strategy recommendations to a US affiliate without engaging in operational tasks or direct project execution, or being supervised by US based managers.
  • Conducting independent research—e.g., Analyzing industry trends, competitor activities, or economic conditions in the US on behalf of a foreign company without engaging in direct business operations or work.
  • Receiving short-term training—e.g., Attending a corporate training session.
  • Engaging in certain allowable short-term professional activities—e.g., Tasks requiring a relevant bachelor’s or higher degree (or equivalent experience), while remaining employed, paid, and supervised by a foreign employer located abroad.

Prohibited activities for business travelers[3]

Business travelers are NOT permitted to:

  • Engage in employment or receive US wages or supervision—e.g., Working for a US or foreign company or freelancing or self-employment on behalf of US or foreign clients while in the US. This includes work performed on behalf of a US employer that could otherwise be done by a US employee, such as providing client services or managing company operation.
  • Provide direct services to a US company—e.g., Installing, servicing or repairing equipment at a customer site in the US
    • Exception: Certain contracts include: 
      • After-sale activities such as installing, servicing, or repairing commercial or industrial equipment or machinery purchased from a company outside the United States; or
      • Training US workers to perform such services.
  • Manage or operate a US business—e.g., Running daily operations or hiring employees for a US entity.
  • Perform hands-on work—e.g., Assembling goods.
  • Overstay the permitted period of entry—e.g., Remaining beyond the allowed timeframe without proper authorization.

Preparing for entry: Tips for a smooth arrival

  • Know your purpose: Be clear on the business-related reason for your trip and ensure it aligns with lawful business-traveler requirements. Note that saying you are coming to “work” in the US, rather than engaging in permissible business activities or services, may convey to a US Customs and Border Protection (CBP) officer that you are seeking to enter unlawfully to perform skilled or unskilled labor for hire—activities that are not allowed under the B-1 or WB business-visitor categories.
  • Be prepared to present supporting documents: Consider carrying an invitation letter from a relevant US business contact or foreign employer, and/or conference registration details, as well as evidence of ties to your home country (e.g., proof of foreign employment, property ownership, close family members outside the US, evidence of financial resources to cover expenses during your US visit, and a round-trip return ticket).
  • Ensure your travel documents are in order: Review your passport, ESTA and/or visa stamp to confirm its validity for the duration of your planned trip to the US. Some passports are required to be valid for at least six months after the intended US departure date. Review your specific passport requirements before you travel and apply for a timely renewal where necessary.
  • Be consistent: Your statements to CBP officers must be truthful, and should align with your documentation and visitor category; keep your responses concise and to the point.
  • Never misrepresent the facts: A “white lie” or minor inconsistency can raise red flags, result in additional scrutiny, and may even result in refusal of admission to the United States or a permanent bar to reentry.
  • Stay within the scope: Do not volunteer unnecessary information; if your trip includes non-business activities that are lawful yet incidental, i.e., less than 50% of your time in the US on that trip, ensure they remain within legal limits for your visa type and do not involve unauthorized work or the bartering of services, e.g., house-sitting or childcare.
  • Expect vetting at each entry: A valid ESTA authorization or B-1/B-2 visa does not guarantee admission; officers assess eligibility upon each arrival.
  • Impact of travel history on ESTA eligibility and US entry for business travellers: Prior travel to countries the US considers as hostile to its interests may disqualify a traveler’s eligibility for ESTA authorization or trigger additional questioning by CBP. Such trips could impact admissibility or future renewals under the B-1 visa or ESTA WB business-visitor categories.
  • Be prepared for potential mobile device searches: CBP has the authority to inspect and confiscate electronic devices, including laptops and mobile phones, at the border. Consider your organization’s policies and best practices for digital privacy and security while traveling.[4]
  • Mind your digital footprint: Be aware that US immigration officers may review your social media activity. Ensure that your online presence is consistent with your stated, law-abiding purpose for visiting the country.
  • Be aware of the grounds of inadmissibility: US immigration laws bar the admission of noncitizens whose past activities or intended purpose in visiting the country are treated under American law as illegal or prohibited.[5] If you have questions or concerns about your past or prospective activities, consult a US-licensed immigration lawyer whom you assess to be competent in the specific subject matter.

With heightened enforcement under the current administration, business travelers should take extra precautions to ensure compliance with US immigration laws and avoid unwelcome complications at the border. Planning ahead and understanding the rules may help facilitate a smooth entry into the US for your business visits.

[1]See U.S. Customs and Border Protection, web page,”Frequently Asked Questions about the Visa Waiver Program (VWP) and the Electronic System for Travel Authorization (ESTA),” accessible here:    https://www.cbp.gov/travel/international-visitors/esta. (All links in this article last visited on March 27, 2025.)

[2] See 22 CFR § 41.31, U.S. Department of State, Foreign Affairs Manual,  9 FAM 402.2-5 (accessible here: https://fam.state.gov/fam/09fam/09fam040202.html) and U.S. Citizenship and Immigration Services web page, “ B-1Temporary Business Visitor” (accessible here: https://www.uscis.gov/working-in-the-united-states/temporary-visitors-for-business/b-1-temporary-business-visitor) (All links in this article last visited on March 27, 2025).

[3]  Id.

[4] See U.S. Customs and Border Protection, web page, “Border Search of Electronic Devices at Ports of Entry,” accessible here::  https://www.cbp.gov/travel/cbp-search-authority/border-search-electronic-devices.

[5] See U.S. Department of State, Foreign Affairs Manual,  9 FAM 302 (Grounds of Ineligibility), accessible here: https://fam.state.gov/fam/09FAM/09FAM030201.html, , and U.S. Citizenship and Immigration Services Policy Manual, Volume 8, “Admissibility,” accessible here: https://www.uscis.gov/policy-manual/volume-8.

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.]