Impact of Trump Administration’s Executive Order on Business Immigration
Immediately upon taking office last week, as expected, President Trump issued a number of executive orders targeting immigration. These orders are likely to have a wide-ranging impact on immigration policy, most notably immigration enforcement and humanitarian immigration benefits. Unlike the executive orders issued shortly after he took office in 2017, however, the executive orders issued on Trump’s inauguration do not specifically target business immigration. Nevertheless, it is likely that the orders will have some impact on foreign workers, their employers, and their families. “Enhanced vetting” may increase scrutiny with visa processing and employer-sponsored petitions through the USCIS, which may result in longer processing times, more requests for evidence, and higher denial rates, as was witnessed during the first Trump administration. It is also possible that the administration will issue additional orders aimed more specifically at employment-based categories in the coming months. A summary of Trump’s immigration-related executive orders as of today, as well as the likely impact of these orders on business immigration, is provided below.
Enhanced Vetting for Visa Processing & Applications for Immigration Benefits
The Executive Order (EO) “Protecting The United States From Foreign Terrorists And Other National Security And Public Safety Threats”, in pertinent part, requires the Department of Homeland Security (DHS) and Department of State (DOS) to promptly re-establish a uniform baseline for screening and vetting standards and procedures for applicants seeking a visa or immigration benefit, consistent with the uniform baseline that existed during the first Trump Administration. The EO further states that the agencies must vet and screen “to the maximum degree possible” foreign nationals who intend to be admitted, enter, or are already inside the United States, particularly those coming from regions or nations that the administration has identified as security risks.
In addition, within 60 days of the issuance of the EO, these agencies must identify countries where vetting and screening information is so deficient to warrant a partial or full suspension on the admission of nationals from those countries. The agencies must also identify how many nationals from those countries have been admitted to the United States since the Biden Administration took office. The EO also directs the DHS and the DOS to review all visa programs and all existing regulations, policies, and guidance related to grounds of inadmissibility within 30 days for national security purposes.
What this means for clients:
Although the ‘Enhanced Vetting’ EO provides little in the way of specific policy directives, foreign nationals applying for US visas at US consulates and embassies abroad should expect to face longer processing times, and a higher risk of ‘administrative processing’ delays. It is also possible that the visa interview waiver program will be discontinued completely, for at least the duration of the Trump administration. This program, which has been around for over a decade, allows certain visa applicants to have their in-person interviews waived in order to increase the consular service’s efficiency. For these reasons, as advised in our earlier alert, we recommend that foreign nationals who are currently living in the US avoid non-essential international travel if they will need to have their visa renewed while abroad, until we have a better idea of how Trump’s broad policy pronouncements will be implemented.
The provision of the Enhanced Vetting EO directing agencies to ‘identify countries where vetting and screening information is deficient’ may also be used by the Administration to issue travel bans for all nationals from certain countries, similar to the Muslim Travel Bans implemented during the initial days of the first Trump Administration. A country-wide ban would not likely affect foreign nationals who already have visas and are currently residing in the United States. If Trump were to attempt such a far-reaching ban, it would very likely be enjoined by a Federal court, as happened with the initial Muslim Travel Ban in 2017.
While the Enhanced Vetting EO does not specifically target employment-based immigration, it may also cause delays with immigration benefits applied for from within the US through the United States Citizenship and Immigration Services (USCIS). The EO may also result in an increase in requests for evidence for H-1B and other employer-sponsored petition categories.
Possible End to Efficient USCIS Adjudications and Reinstatement of Trump’s Public Charge Policy
The EO “Protecting the American People Against Invasion”, in part, revokes the Biden Administration’s Executive Order 14012 of February 2, 2021 (Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans). It also directs agencies to promptly revoke all memoranda, policies, and guidance based on the revoked EO. The Biden Administration’s EO 14012 directed agencies to identify and eliminate barriers to the legal immigration system that impede access to immigration benefits and fair and efficient adjudications. It also required the promotion of naturalization. Additionally, the Biden Administration’s EO required all relevant agencies to review the implementation of Trump’s public charge policy which resulted in the return and codification of the USCIS’ previous policy guidance on public charge from 1999.
In addition, the Trump Administration’s EO “Removing barriers to American Leadership in Artificial Intelligence” rescinds the Biden Administration’s Executive Order 14110 of October 30, 2023 (Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence) to remove barriers to American Artificial Intelligence (AI). The Biden Administration’s EO, in part, directed the DHS to modernize immigration pathways and streamline processing times of visa petitions and applications such as H-1B, O-,1 and EB-1, to attract and retain foreign nationals who work in and other critical and emerging technologies.
What this means for clients:
The revocation of the Biden Administration’s EOs 14012 and 14110 could possibly have a significant impact on business immigration, as it could be used to overturn current US Citizenship and Immigration Services (USCIS) policies that streamline adjudications, such as waiving adjustment of status interviews, reusing biometrics, and most importantly, giving deference to prior approvals.
During the first Trump Administration, the USCIS rescinded its longstanding policy of deferring to prior approvals when adjudicating nonimmigrant petition extensions involving the same parties and facts as the initial petition. This rescission resulted in an increase of Requests for Evidence (RFE) for H-1B, O-1, and L-1 extensions, leading to significant delays in adjudication, and a higher rate of denials. The revocation of EO 14012 may be the precursor to another period of lengthy adjudications and more RFEs. It should be noted however that the rate of RFEs and denials decreased significantly by the end of Trump’s first administration, even though the recission of the deference policy was still in effect at that time.
Additionally, the Trump Administration’s EO will likely result in the return of his previous Administration’s public charge policy. The 2019 public charge policy under the Trump Administration required most green card applicants and certain nonimmigrants to demonstrate that they are not likely to use public assistance by submitting evidence of income sufficiency such as past receipt of public benefits, federal income tax returns, credit reports, and possession of private health insurance. Trump’s policy caused fear and confusion to immigrant communities, delays in adjudications, and was subject to federal litigation and injunctions. If the current Trump Administration reinstates this public charge policy, implementation should not be immediate as it will likely have to undergo normal rulemaking procedures, and/or it will be subject to federal litigation.
Review of Existing Trade Agreements
The EO “America First Trade Policy” signals a possible return of Trump’s earlier policy “Buy American, Hire American”. In addition, it directs agencies to review all trade agreements, including the United States-Mexico-Canada Agreement (USMCA).
What this means for clients:
It is unknown at this time if the review of trade agreements will impact TN, H-1B1, or E-3 visas. Employers may want to look into alternative visa options such as the H-1B cap lottery for employees.
Humanitarian Parole Programs and Deferred Action Programs
The EO “Protecting the American People Against Invasion”, in pertinent part, requires DHS and DOS to promptly rescind the policy decisions of the Biden Administration that led to the increased or continued presence of undocumented persons in the United States. This includes ensuring humanitarian parole is properly exercised under law on a case-by-case basis and that designations of Temporary Protected Status (TPS) are consistent with law and are appropriately limited in scope. The EO also requires agencies to ensure that employment authorization is consistent with the law and not provided to any unauthorized person in the United States.
Additionally, in the EO “Securing Our Borders”, the Trump Administration immediately terminated the CBP One application that allowed parole for asylum seekers at the border and the parole program known as the “Processes for Cubans, Haitians, Nicaraguans, and Venezuelans.”
What this means for clients:
The ‘Protecting Against Invasion’ and ‘Securing our Borders’ EOs signal the Trump Administration’s intent to end or severely restrict humanitarian parole programs and TPS designations for certain countries. During his previous term, Trump terminated TPS designations for El Salvador, Honduras, Nepal, and Nicaragua. Federal lawsuits challenging the terminations of the TPS designations for these countries were filed and a preliminary injunction preventing the terminations was issued, allowing the programs to continue. The Biden Administration later vacated the TPS terminations and redesignated TPS for these countries. If the current Trump Administration moves to terminate certain TPS designations, it will likely result in federal litigation similar to before. Furthermore, it is unknown if any termination of these programs will be immediate or phased out.
On January 28, 2025, the USCIS announced that under the EO “Securing Borders” it is pausing acceptance of Form I-134A, Online Request to be a Supporter, and Declaration of Financial Support until it reviews all categorical parole processes. This halt affects humanitarian parole programs such as Uniting for Ukraine (U4U), and suspends further processing of pending applications for these programs. At this time, the Trump Administration has not stated whether it plans to review deferred action programs such as DACA. The Customs and Border Protection (CBP) has stated that persons who hold valid I-512 Advance Parole documents for DACA, TPS, and Adjustment of Status should not be impacted. However, as these programs and TPS remain vulnerable, and entry with Advance parole remains discretionary, we recommend individuals to discuss any upcoming travel plans with our office. We also recommend beneficiaries of these programs to submit their renewal applications and TPS re-registrations and related EAD renewal applications as soon as possible when eligible.
Travel and Importance of Carrying Required Documentation (Enhanced Security at Southern Border and Expansion of Expedited Removal)
The Trump Administration issued several EOs related to enhanced security at the Southern Border as part of its promised mass deportation program. Under the “Protecting Against Invasion,” EO the DHS may authorize state and local law enforcement officials to investigate, apprehend, and detain undocumented persons. On January 23, 2025, the Acting Secretary of Homeland Security issued a request for assistance from State and local governments of all 50 states and deputized the US Marshalls, DEA, ATF, and Bureau of Prisons in enforcing immigration laws. In addition, on January 24, 2025, the DHS published a notice in the Federal Register that immediately expands expedited removal (a fast-track deportation without a hearing) to anywhere in the United States. Previous policy limited expedited removal to 100 air miles from the border.
What this means for our clients:
The “Protecting Against Invasion” EO may increase the likelihood of persons within the US being stopped and asked to present evidence of valid status immigration. If the Administration is successful in martialing local law enforcement and military personnel to supplement immigration enforcement activities, there is also a possibility that such persons, who presumably will only receive minimal training in immigration laws, will incorrectly assess a person’s valid status. We therefore recommend all noncitizens, including permanent residents (green card holders) carry evidence of their legal immigration status, with them at all times. The immigration law requires that every noncitizen who is 18 years or older carry their Employment Authorization Document (EAD), Green Card, or other proof of alien registration, such as a valid I-94, in the United States. In addition, we recommend that all noncitizens living in the United States for 30 days or longer report any change of address to the USCIS within 10 days after the address change.
Birthright Citizenship
The EO “Protecting The Meaning And Value Of American Citizenship” restricts the conferment of US citizenship to persons who are born in the United States to limited circumstances. Under this EO, only persons born to a US citizen or lawful permanent resident mother or father are considered US citizens. US citizenship will not be conferred to any persons born to undocumented parents or parents who are in lawful nonimmigrant status, such as F-1, H-1, L-1, or O-1.
What this means for clients:
Birthright citizenship is guaranteed by the 14th Amendment of the US Constitution, which cannot be amended by an executive order, or even an act of Congress. The Trump administration’s attempt to reinterpret the meaning of this amendment is not considered plausible by most legal scholars, and will not likely survive litigation challenges brought in Federal court. The day after the EO was signed by Trump, a federal lawsuit challenging the EO was filed by the American Civil Liberties Union (ACLU) and other organizations. On January 23, 2025, the Court ordered a temporary restraining order to enjoin implementation of the Executive Order, stating that Plaintiffs will succeed on the merits of their claims that the EO violates the 14th Amendment and the Immigration Nationality Act.
Gender identity
The EO “Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government” changes the federal government’s recognition and terminology of gender. Under the EO, government agencies only recognize two sexes – Male and Female – and only the term “sex” can be used rather than “gender”. The sexes are determined based on the immutable biological classification at birth and cannot be changed.
What this means for clients:
This EO will negatively impact persons who do not identify under the strict definitions of Male and Female. Under this EO, all government-issued identity documents will need to reflect these defined categories. It is likely that the US passport applications will be revised to no longer offer the “X” option for gender. Furthermore, the USCIS may no longer accept requests for gender change on immigration-related documents. At this time, it is unknown whether the USCIS or government agencies will require re-issuance of green cards, passports or global entry cards. It is likely that this EO will be subject to legal challenges in the Federal Court.
Rescission of COVID-19 Restrictions
On January 22, 2025, the USCIS announced that it is waiving any and all requirements for the COVID-19 vaccination as part of the mandated vaccinations for the I-485, adjustment of status filing (the final stage of the green card application process). Effective immediately, the USCIS will not issue Requests for Evidence (“RFE”), deny, or otherwise delay an I-485 approval for lack of proof of COVID-19 vaccination. Please note however that the USCIS website still lists COVID-19 as one of the required vaccinations.
We will continue to provide updates as we learn more about how Trump’s immigration policies will impact employment-based immigration. We also invite clients to attend our webinar on January 30, 2025 (1:00 pm PT) where we discuss the direct and indirect impacts of Trump’s executive orders on business immigration. Please use this link to RSVP to the event.