Immigration reform will be a focal point of the new administration in the early days of Trump’s transition back to the White House with a likelihood that some changes initially will come by way of executive action. The practical implications of any immigration policy changes may begin to take shape in the early months of the new administration, but based on his past administration and campaign rhetoric, it is possible that some changes could be swift.

The Trump campaign and agenda provide key insights into what may lay ahead for proposed immigration policy that could affect employers and their employees.

Employment-based programs

It is expected that the H-1B program, one of the most popular employment-based nonimmigrant visa programs, will be scrutinized with an emphasis on sponsorship of top foreign talent and payment of higher wages by employers. This would present a shift in the program, where it currently is inclusive of entry-level positions with prevailing wages so long as the position qualifies as a specialty occupation, which requires a bachelor’s degree in a specific field of study to perform the job.

Agenda proposals

• Change the H-1B specialty occupation visa program into an elite program, meaning employers will be bringing in top, high-skilled foreign workers at the highest pay bands. This also supports the administration’s plan to eliminate the two lowest prevailing wage bands (Level I and Level II) in support of favoring higher wages for these sponsored positions.
• Place a cap on the number of H-2A nonimmigrant visas issued annually and phase down the H-2A visa program, which allows employers to sponsor workers for seasonal or temporary agricultural jobs.
• Phase out the H-2B visa program, which allows employers to sponsor workers for temporary, non-agricultural jobs.

Compliance and enforcement

In addition to potential changes in employment-based visa programs, it is expected that there will be more scrutiny in the area of compliance and enforcement with the proposal to permanently authorize E-Verify, currently an optional program used by employers in the I-9 compliance process and require its mandatory use by employers. It is also expected there will be an increase in Department of Labor investigations for suspected visa fraud, which could include investigations related to misuse or falsification of labor-related visa applications submitted to the DOL by employers, attorneys or labor brokers.

Agenda proposals

• Permanently authorize E-Verify and require mandatory participation by employers.
• Increase in Department of Labor investigations for suspected visa fraud.
• Increase in ICE worksite investigations and enforcement.

USCIS policies and reform

There are also proposals to reform U.S. Citizenship and Immigration Services (USCIS), the arm of the Department of Homeland Security in charge of processing immigration benefit applications and petitions. Some notable suggested changes include an increase in filing fees and pausing the processing of benefit applications when case backlogs become excessive. It’s also possible that there could be an increase in required interviews for certain types of cases where there are currently waivers of the interview requirement when a case is straightforward and does not present any issues that require officer follow up. For instance, many employment-based adjustment of status (green card) applicants have had their interviews waived in recent years.

Agenda proposals

• Increase USCIS filing fees.
• Limit availability of fee waivers, which allow certain applicants to file without the required filing fee.
• Proposed new process that USCIS will not accept applications in benefit categories when application backlogs in a category become excessive. Backlogs happen when there are more applications that need processing than there are officers to review and adjudicate them. Once application processing is back to normal, the intake of new applications would resume.
• Proposed new process that if USCIS has case backlogs and an applicant is rejected for any benefit or status adjudication then that applicant would be required to leave the U.S.
• USCIS policy memorandums and operational guidance that would reduce the validity of employment authorization documents and end COVID flexibilities (not allowing for the reuse of prior biometrics).
• Implement management directives that prohibit USCIS officers from working on DACA and parole programs for Afghans, Ukrainians and Venezuelans.
• Establish 100% interview requirements for all appropriate cases.

Humanitarian statuses

Many U.S. businesses employ foreign nationals that are authorized to work pursuant to a humanitarian status and may not require employment-based sponsorship. Individuals that have a pending asylum application, that are in TPS status or are DACA recipients, are all in lawful statuses that allow them to remain in the United States and work for U.S. companies when they present the company with appropriate employment authorization documents. Most of these statuses do not provide a direct pathway to obtaining Legal Permanent Resident status (green card).

A second Trump administration will likely attempt to end these programs, as was attempted in the first administration. Similar to the first administration, it is expected that potential litigation will challenge and thwart attempts by the administration to end these programs.

Agenda proposals

• Repealing TPS designations for foreign nationals that were in the U.S. when war or environmental disasters occurred in their home country, preventing them from returning safely.
• Eliminating gang violence and domestic violence as grounds for seeking asylum.
• Eliminating the Diversity Visa program, which allows foreign nationals from countries with low levels of immigration to apply for a green card through a lottery system that has a 50,000 annual immigrant visa limit.

Unanswered questions

There are many questions that remain to be answered. What does an elite H-1B program look like? What constitutes an excessive backlog? What cases are considered appropriate for interview requirements? These questions, and many others, will only be answered if and when these proposed plans become policy under the new administration.

However, Trump’s first administration does provide some insight into the types of administrative challenges that are likely to arise, which may affect case preparation and processing. These challenges could include an increase in Requests for Evidence (RFEs) for H-1B petitions, an increase in PERM audits with heightened scrutiny on recruitment efforts and an increase in case processing times.

Porter Wright will continue to provide timely updates as immigration policy changes occur under the new administration—stay tuned and stay informed.