Preparing businesses for potential U.S. immigration changes

Immigration plays a vital part in keeping the U.S. economy strong and competitive. In a dramatic move shortly after taking office, President Donald Trump signed a series of Executive Orders that could reshape the landscape of U.S. business immigration. These orders signal a shift towards prioritizing American workers and enforcing stricter immigration regulations. While the specifics of how these policies will be implemented remain uncertain, the overarching themes of the orders provide a clear indication of the Administration's immigration agenda.

It is anticipated there will be significant shifts in U.S. Immigration policy impacting businesses and the foreign talent they employ. As companies assess the potential impacts of these policies, many are left wondering how they will navigate the evolving immigration landscape. The uncertainty surrounding the implementation of the Administration's immigration agenda raises questions about the future of work in the U.S. and the role that foreign talent will play driving economic growth and innovation.

We have outlined several actions that employers should consider to prepare for potential changes in immigration policy. These steps are essential for ensuring compliance within their business immigration programs and for minimizing disruptions to their operations.

President Trump has instructed federal agencies to prioritize securing the U.S. border and enhancing screening procedures for all foreign nationals seeking entry into the United States or applying for U.S. visas. Consequently, it is crucial for organizations that frequently send employees to the U.S. for business to review their Business Visitor programs. This review should ensure that employees are entering the U.S. under the correct visa categories that correspond with their intended business activities.

A thorough evaluation of Business Travelers is essential, which includes analyzing their travel frequency, length of stay, and the nature of their activities in the U.S. This assessment is vital to confirm that employees are applying for the appropriate visa categories and possess the necessary documentation to support their entry requests.

With the increase of Immigration and Customs Enforcement (ICE) raids at workplaces and other enforcement actions anticipated, U.S. businesses must ensure their I-9 employment authorization verification practices and documentation are compliant. The Form I-9 is used by U.S. employers to verify individuals are authorized to work in the United States and is mandatory for every employee. Officials from the Department of Homeland Security (DHS) have the authority to inspect an employer's Form I-9s, and employers who refuse or delay such inspection will be in violation of the law. Further, employers found to have violated I-9 rules may be subject to significant monetary fines, criminal penalties, debarment from government contracts, or court ordered to provide backpay to individuals discriminated against.

Similarly, the Department of Labor (DOL) has authority to investigate an employer's adherence to H-1B Labor Condition Application (LCA) requirements as well as PERM employment-based green card practices. Non-compliance with LCA regulations carry severe penalties for employers, including monetary fines, criminal penalties, obligations to pay back wages, and disqualification from the H-1B program restricting future sponsorship of H-1B workers. Penalties for PERM violations include civil fines, disqualification from submitting future PERM applications, and potential legal action depending on the severity of the violation.

Given the significant penalties associated with immigration violations and the risk of being restricted from sponsoring future visa and green card applications for essential foreign talent, it is critical for employers to review their current immigration practices to ensure full compliance with their obligations under the relevant employment and immigration laws. A comprehensive audit of these programs will flag violations and errors for remediation, as well as highlight areas where additional training for HR personnel may be necessary.

The increase in law enforcement actions by immigration authorities, coupled with severe penalties for non-compliance, underscores the growing importance of comprehensive HR and global mobility management. This is essential not only for facilitating the smooth and efficient movement of employees across borders but also for ensuring that companies adhere strictly to U.S. immigration laws and regulations. Employers must take proactive measures to prepare for potential U.S. Citizenship & Immigration Services (USCIS) site visits or other immigration enforcement investigations. The USCIS fraud detection unit, through its Fraud Detection and National Security (FDNS) officers, have the authority to conduct random and unannounced site visits at employer workplaces. These visits are applicable to employment-based visa programs, including H-1B specialty occupation workers and L-1 intracompany transfers, which are among the most used visa categories by U.S. companies to sponsor foreign workers.

FDNS site visits are mandatory, and an employer's non-compliance or refusal to cooperate with an FDNS inspection can result in application denials, revocations, and increased scrutiny on the employer's visa programs. It is crucial for companies to designate key representatives to respond to FDNS site visits, ensuring they have proper access to the necessary supporting information and documents. Additionally, company representatives should be adequately trained on how to respond to investigations to prevent any disruption to a foreign worker's ability to continue working and to maintain the integrity of the employer's visa programs.

As immigration policies become more stringent and the Trump Administration seeks to reduce federal staffing, including within agencies that oversee immigration benefits, workforce and visa planning will become more intertwined. Lack of strategic workforce and visa planning may result in labor shortages in critical sectors, which could hinder economic growth and innovation for U.S. businesses. Therefore, it is crucial to proactively assess business needs, consider alternative work permit options, and adjust local hiring strategies. Moreover, under the Trump Administration, it is anticipated that the timelines for government processing of immigration applications will lengthen across the board. Effective immigration planning for international assignees is vital to accommodate potential visa delays. Employers must also accurately monitor the expiration dates of employee work permits to facilitate timely planning for visa renewals and green card applications, thereby preventing disruptions and ensuring continuity and stability within the organization.

Given the rapidly changing immigration landscape, it is crucial to recognize that policies can shift swiftly, potentially impacting U.S. businesses and their diverse immigration programs. The new Administration is preparing to implement additional travel restrictions on foreign nationals, including a formal travel ban. Consequently, businesses must maintain close communication with their immigration counsel to stay informed as the situation evolves. Legal challenges from advocacy groups and affected individuals may emerge, and companies should be aware that potential litigation challenging legal reforms could delay or alter the implementation of new policies.

President Trump's protectionist trade policies and the imposition of tariffs have also prompted possible renegotiations of international trade treaties, some of which contain provisions that grant certain nationals access to special work visas. Under the America First Trade policy, President Trump has directed U.S. trade representatives to review, renegotiate, or even withdraw from agreements, which could limit or eliminate specific visa categories. Gaining valuable insights into potential changes in U.S. immigration laws and policies, as well as trade agreement renegotiations, will enable HR and Global Mobility teams to manage workforce immigration issues more effectively and help streamline cross-border travel.