Archives for November 2024

By: What’s Past is Prologue: Employment-Based Immigration in the Second Trump Administration

Donald Trump’s 2024 campaign promised mass deportation, ending of birthright citizenship, and “sealing” the southern border. While Trump’s rhetoric is largely aimed at the undocumented population, his electoral victory will likely affect employers petitioning for and lawfully employing foreign national workers. This blog piece will offer some opinions on what California employers can expect in employment-based immigration out of a second Trump administration.

The one thing that we should not expect is any real changes in the law. While the Republican party controls the White House and both chambers in Congress, the GOP is unlikely to be able to overcome a filibuster without the votes of seven Democratic senators. Given the importance of immigration to our current national politics, it’s difficult to see a scenario where the GOP can expend sufficient political capital to garner the votes needed to make any substantial changes to the Immigration and Nationality Act.  

This does not mean that the practice of immigration law will not change in 2025.  Presidential administrations have vast amounts of control over the implementation of immigration law and policy. Looking to the past gives a glimpse into the future. The incoming Trump Administration will change the culture within the immigration agencies and the regulations that interpret the Immigration and Nationality Act. These changes are likely to complicate an already overly complicated process, raise costs, and raise the stress levels for (a) employers, (b) foreign nationals seeking to utilize lawful employment-based immigration processes, and (c) the lawyers that counsel them.

Change in Culture

Shortly after Inauguration Day, the incoming Trump Administration will almost definitely order the immigration agencies to change the criteria upon which immigration petitions are adjudicated. While it’s difficult to foresee exactly how the Trump Administration will tweak these rules, the past offers us a glimpse into the future.  

In the early days of the first Trump Administration, USCIS withdrew the policy of deferring to their prior decisions. This policy states that absent a showing of fraud or gross misrepresentation in the prior decision, USCIS will defer to its prior decision making. This change was foundational to all other sub-regulatory changes. With USCIS no longer bound to its prior decisions, the agency is now free to reinterpret its regulations and create chaos in lawful employment-based immigration. Educational degrees that were approved in prior petitions may no longer qualify for the visa sought. Government publications USCIS previously relied on as source material may no longer given any weight. Wages that met the standard in prior petitions now may not pass muster.  

We should expect that USCIS will communicate these changes not through notice and comment rulemaking, but through the adjudication process. Many petitions that were not questioned in the past will now likely draw a Request for Evidence or Notice of Intent to Deny. It is likely that USCIS will communicate their new standards by stating that petitions that once were approved without question no longer qualify.

Additionally, USCIS may return to the practice of advancing unreasonable, illogical, or irrational positions in its decision-making process. As one of many examples, in 2016, British music producer Austen Jux-Chandler won a Grammy Award for engineering and mixing Adele’s album 25. In 2020, during the first Trump administration, Mr. Jux-Chandler submitted an EB-1 Person of Extraordinary Ability immigrant petition claiming that he qualified because he had received a major, internationally recognized prize or award. USCIS denied his petition stating that while Mr. Jux-Chandler received a Grammy statuette, he had not won a Grammy Award.

Change in Regulations

Employers should expect the Trump administration to issue regulations reinterpreting the Immigration and Nationality Act. These regulatory changes will take longer to implement than the cultural changes mentioned above. The Administrative Procedures Act requires USCIS to publish proposed regulations and allow the public to commit on the proposed changes.

The Trump administration may publish regulations changing the H-1B visa requirements. While commonly used in Information Technology position, this visa is used to employ foreign nationals in positions that require at least a bachelor’s degree in a particular field. Changes to the H-1 programs in the prior administration removed the ability to place an H-1 worker at a third party worksite, eliminated the use of work experience to met educational qualifications, and restricted the education that qualifies for the visa.

The second regulatory change the prior Trump administration attempted to implement was a change to the Public Charge rule. The Immigration and Nationality Act forbids the entry of foreign nationals who are likely to need public assistance. Prior (and current) regulation requires immigrants to obtain a sponsor and submit a modicum of evidence to meet an objective standard that they are not likely to use public benefits. Expect a change to the Public Charge rule that will widen its scope. Immigrants that were previously not subject to the rule will likely be required to meet the public charge test. Also expect immigrants to be required to produce documentations akin to a loan application or extension of credit from a bank. Finally, and most alarmingly, we expect a new Public Charge rule to grant immigration officers wider latitude in determining if and when an immigrant is a public charge. 

Conclusion

Government, and in particular, President Trump is highly unpredictable. Thus, it is difficult to say exactly what changes will and will not occur with employment-based immigration during the Trump 2.0 administration. However, it does appear to be pretty clear that employers engaging with the employment-based immigration system should expect substantial additional scrutiny and unpredictability. The changes that are being made, regardless of what they actually will consist of, will very likely translate into higher costs in the form of additional attorney time to deal with changes to immigration processing, slower processing times as well as more challenges and obstacles in securing work visas for immigrant employees and immigrant students. CDF Labor Law LLP’s Immigration Practice Group is more than happy to assist California employers with their immigration law needs in 2025 and help employers navigate all the changes and new obstacles.