Overview:

• Since the 2024 election results, no topic has come up more often than U.S. immigration.
• While this is all speculation based on information available to the public, it is fair to say that President-Elect Trump’s stance on immigration into the United States is going to be a major platform in his second term.
• The primary areas to be mindful of:
  • How targeting "illegal" immigration may impact employment-based immigration
  • Potential country bans into the United States (at least temporarily).
  • Additional scrutiny to employment-based immigration petitions (H-1B, L-1, etc. …).
  • Increased I-9 audits.
  • Increase in USCIS site visits.
  • Potential changes to the EB-5 investor program.
  • Appointment of the DOGE, Tom Homan, and Stephen Miller and impact to U.S. immigration.

Immigration in the news:

• It is clear that changes to U.S. immigration will be take place on day 1 of President-Elect Donald Trump’s administration.
• President-Elect Trump ran on a platform of addressing the immigration crisis in America and as such, is under a mandate by the American people to take immediate action.
• Some policies that will most likely be implemented shortly after President-Elect Trump is sworn into office:
  • Deportations of foreign nationals who are in the United States without a valid visa (“illegal immigrants”) and/or criminal background.
    • According to the Migration Policy Institute, in President-Elect Trump’s first term, 1.5 million individuals were deported but it appears that this number will be dramatically increased in his second term.
  • Implementation of “remain in Mexico” program:
    • For those who want to apply for asylum in the United States, they must do so from outside the United States.
  • Increased resources for Immigration and Customs Enforcement (ICE).
  • Addressing the border including rebuilding the border wall and increasing enforcement at ports of entry into the United States.

Changes to legal employment-based immigration:

• We believe there will not be an immediate impact. The initial focus will be entirely on potential deportations of those in the United States without valid status and/or criminal background.
• While under President Trump’s first term, we saw additional scrutiny of employment-based immigration filings, how these will be treated in his second term if open for debate.
• There is no question that additional scrutiny is expected however, appointments of certain people to his administration might indicate that he is more open to legal employment-based immigration in his second term (see below).
• Areas that the second Trump administration may address are:
  • Increased scrutiny of H-1B (most popular visa category) and others including L-1. NOTE: We have been here before. History has told us that so long as the beneficiary meets the requirements and the petition is presented accordingly, we still feel strongly that cases will get approved. With that being said, it will be more important than ever to file strong and accurate petitions.
  • Potential targeting of H-4 EAD (Employment Authorization Document) – this would potentially impact the spouses of H-1B holders.
  • Increased PERM (Labor Certification) audits with the Department of Labor (DOL).
    • When PERM applications are initially filed, supporting documentation is not included however, the DOL reserves the right to audit the application and request all supporting documentation. If you cannot furnish the requested information/documentation, the application is subject to denial.
  • Banning of individuals from certain countries to apply for employment-based immigration visas:
    • In his first term, President Trump enacted a travel ban from the following countries: Chad, Eritrea, Iran, Iraq, Kyrgyzstan, Libya, Myanmar, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.
  • Increase in I-9 audits:
    • In June 2024, The Department of Homeland Security announced increased penalties for I-9 violations (see previous article we published on this topic). 
    • Under the new Trump administration, it is highly anticipated (dare we say expected) that I-9 audits will increase and fines will be enforced especially for those companies with previous violations.
    • Companies should be diligently auditing their I-9s and overall process in order to ensure 100% compliance.
    • We anticipate that the most targeted areas of enforcement will be those employers with traditionally the highest share of noncitizen U.S. workers such as agriculture, construction, hospitality, and manufacturing, as well as those employers who have been audited previously and failed to show compliance with I-9 employment verification.
    • It is highly suggested for employers who are not enrolled with E-Verify to enroll now. While it is currently a state-by-state mandate, there are rumors of E-Verify becoming a federally mandated requirement.
  • Increase in USICS site visits:
    • Prior to the COVID-19 pandemic, we saw an increase in site visits that meant USCIS reps would show up unannounced to locations stated in immigration petition filings to ensure that all the details listed were accurate. We believe these site visits will increase under the new administration.
    • Employers should be prepared for these visits including ensuring that individuals in office locations are aware of this potential visit and know to reach out to leadership and counsel accordingly.
  • Potential changes to the EB-5 investor program:
    • Under President Trump’s first term, while many visa types faced additional scrutiny, the EB-5 investor program was left more or less untouched.
    • While many are speculating that the EB-5 program will fall under additional scrutiny during the new Trump administration, many are predicting little to no changes.
    • In fact, President-Elect Trump historically supports real estate development (for obvious reasons) and we are hopelessly optimistic that this program will remain as is albeit, with slightly additional scrutiny and/or longer processing times.
    • Lastly, President-Elect Trump has touted potential reductions in tax liabilities for high-net worth individuals, which could in turn lead to more interested and motivated foreign investors.

Appointment of Tom Homan, Stephen Miller, and establishing the DOGE:

• Former ICE Director Tom Homan has been tapped by the upcoming Trump administration to be the “border czar.”
  • In a recent interview, Mr. Homan was quoted as saying “Take the handcuffs off ICE.”
  • President-Elect Trump stated that he will declare a national emergency in order to address illegal immigration in the United States.
  • Mr. Homan will be tasked with launching the largest deportation program in American history with the goal of getting the criminals out of the United States.
  • Just watching Mr. Homan’s interviews, it is clear what he has been tasked to do but again, this is specifically related to those individuals who are in the United States without a valid visa.
• It has been reported that Stephen Miller will serve as deputy chief of staff for policy as well as serving as the homeland security adviser in Trump's second term.
  • Referred by multiple media outlets as an immigration hard-liner on immigration policy.
• Appointment of DOGE (Department of Government Efficiency)
  • While DOGE hasn’t published any specific immigration agendas, the below tweet it very telling:

• The current H-1B lottery system is 100% luck and 0% merit based.
• There have been talks of revamping the H-1B program for many years but the lottery is still in place and doesn’t reward those with higher level degrees and/or degrees is sought after fields.
• This is definitely something to keep monitoring.

Cozen O’Connor’s analysis:

• Changes are coming! There is no stopping this train.
• President-elect Trump will have to deliver on the promises he made during the campaign so both employers and individuals should be on notice.
• Employers should proactively assess their I-9 program and compliance including initiating proactive audits to test the accuracy and efficiency of their I-9 program.
• Between now and President-elect Trump’s inauguration, more and more updates and news will be coming out and with that, more and more speculation. It is important to stay level-headed and not overact without knowing all the information.
• Given the uncertainty of the future, employers are strongly encouraged to file extensions at the earliest possible opportunity. Processing times at the USCIS may increase given the additional scrutiny filings will be subject to and the earlier petitions can be filed, the better.