President Donald Trump's return to the Oval Office is expected to transform U.S. immigration policy. Many of these changes will impact U.S. employers, including those whose employees do not have work visas. Here are the top five areas where we expect major changes to impact employers and how to prepare for them.
1. Increased enforcement and workplace raids by Immigration and Customs Enforcement (ICE), investigations by the Department of Justice
Form I-9 Audits
ICE is expected to increase the number of Form I-9 audits overall. However, some geographic areas and industries may be of greater interest to ICE. For example, more “immigrant-friendly” or “immigrant-heavy” states, as well as companies in the construction, agriculture, manufacturing, or hospitality industries, are more likely to be targets because of their higher proportion of positions that traditionally do not require extensive training.
Form I-9 is used to verify an employee's identity and authorization to work in the United States. Employers must have a properly completed I-9 for each employee, which is subject to review and possible fines in the event of a government audit. Common employer violations during I-9 completion include:
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I-9s not completing on time;
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requesting specific documents;
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Requesting more documents than necessary;
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Reject acceptable documents;
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Electronic signatures are not recorded properly; And
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Failure to properly re-verify certain employees' work permits after expiration.
Penalties can be up to $2,789 per I-9 with material violations and $27,894 for knowingly hiring/retaining workers without authorization. Additionally, if ICE is found to knowingly employ or continue to employ unauthorized noncitizens, ICE is more likely to impose criminal sanctions, with harsher fines and/or a six-month prison sentence. Employees who commit fraud, make false statements or otherwise misuse visas, immigration permits or identification documents may be subject to a fine and/or imprisonment of up to five years.
To prepare for these examinations, employers can:
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Conduct a professional I-9 audit and review the company's I-9 practices (and E-Verify, if applicable). Receive guidance on correcting paperwork violations and identifying systematic errors to correct existing errors and prevent future violations;
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Provide training to the employer's HR team members completing I-9 as employer representatives;
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Institute's corporate policy to ensure fair and consistent I-9 practices and standard operating procedures in the event of an ICE site visit.
Raids on the construction site
We expect further raids on construction sites through the use of Blackie's arrest warrants (Civil search warrant often used by ICE agents to search a workplace where they believe there are unauthorized workers, but is not required to provide specific names or descriptions of the people they are looking for.) Given Trump's policy of cracking down on Unauthorized workers in the United States are more likely to experience widespread raids of this type.
2. Changes to existing humanitarian programs
Given expected changes to existing humanitarian programs, employees authorized to work under Temporary Protected Status (TPS) and Deferred Action for Childhood Arrivals (DACA) could lose their authorization to work in the United States. Such actions may impact the operations of companies that employ large numbers of these individuals.
Although employers are prohibited from terminating employees with this type of employment authorization while that authorization is still in effect, companies should review their Forms I-9 and supporting Schedule A/B/C documents to determine the percentage of the workforce that who may be affected develop plans to minimize the impact of such changes on these humanitarian programs. Of course, employers should still avoid asking direct questions about the applicant's citizenship status or national origin during the hiring process, as it is prohibited to refuse to hire certain employees based on their perceived citizenship status or national origin.
3. Possible gaps in the work permit for foreigners with a temporary work permit
Some employees may have temporary work authorization documents (EADs) that must be renewed by employees and verified by the employer well in advance of the expiration of their current EADs. While such extension requests are pending, most (but not all) employees may rely on the automatic extension period of up to 540 days in these circumstances. However, because not all employees are eligible for the automatic 540-day extension period and many of the employees eligible to work under an EAD are in the United States as part of the humanitarian programs noted above, employers should encourage all employees to work accordingly to an EAD to submit their renewal applications as early as possible (typically up to 180 days before their work authorization documents expire). Although these EADs typically do not provide evidence of lawful U.S. status, possible future changes to such programs may be implemented differently for those who hold valid EADs. The new government could also try to change the regulations.
4. Increased review of visa applications
Ostensibly to encourage hiring of U.S. workers and curb perceived abuses of employment-based immigration programs, Trump's first term saw a dramatic increase in the issuance of requests for evidence (RFEs) and refusals to defer prior approvals. Although the Biden administration just released its final rule codifying the deferral of prior authorization policy along with other significant changes to the H-1B program, employers filing immigration sponsorship petitions on behalf of their employees (such as H-1B and L-1 (petitions) must expect the scrutiny to be tightened again, which will lead to more RFEs. Specifically, we can see the following actions:
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Attempts to limit respect for prior approvals, resulting in more difficult and lengthy processing of renewals;
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As noted above, the Biden administration's codification of the deference policy (set to take effect on January 17, 2025, shortly before Trump takes office) states that “judicial judges should generally rely on prior authorization” to ensure consistency and efficiency support financially. However, in addition to the “general” use of the qualifier, the updated regulations broadly provide that no consideration need be given where there is a material error, a material change in circumstances or eligibility, or material information that adversely affects eligibility , available.
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Higher standards and greater scrutiny apply to employment-based visa applications such as H-1B and L-1 applications, as well as applications from F-1 students working under CPT, OPT, or STEM OPT, which may result in more RFEs, resulting in can lead to denials.
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The recent final rule contains provisions regarding H-1B eligibility, including the definition and required criteria for a specialty occupation. The new administration will likely use these new regulations to make it more difficult for U.S. employers to pursue these visa classifications.
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Given these recent changes, as well as the recent discourse surrounding the H-1B program that has erupted over the past week, it remains to be seen how the transition to non-immigrant employment-related programs, including H-1B classification, will impact the Trump Administration. As a best practice, employers are still encouraged to submit renewals of applications as early as possible (180 days prior to the expiration date) and transition pending applications (if applicable) to premium processing before the anticipated increased scrutiny is implemented. Because of the expected delays and changes, employers should also consider starting green card sponsorships for foreign workers earlier than before.
5. Increased screening and delays at ports of entry, U.S. embassies/consular missions abroad, and country travel bans
Employees who rely on nonimmigrant work-authorized status such as H-1B and L-1 may encounter problems obtaining new visas at U.S. embassies and consulates abroad (Department of State) and may be subject to a more stringent vetting process upon entry (Customs and border guard). These obstacles can result in:
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Increased delays and denials due to stricter controls;
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requests to provide additional documents;
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Detailed review of the applicant's social media to look for inconsistencies and misrepresentations;
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Abolition of the waiver of interviews in consulates.
In addition, there may be a return and expansion of travel bans for nationals of certain countries (mostly Muslim countries) to all “high-risk countries”.
Employees working under an immigration sponsorship should take a conservative approach when traveling outside the United States. When traveling, employees should ensure they have the necessary documents (e.gI-797 approvals, confirmed Forms I-129S) and supporting documentation (e.gcurrent pay slips with employer name). Because the timing of any changes by the new Trump administration cannot be predicted, employees currently outside the U.S. should consider returning to the U.S. before January 20.