Following President-Elect Donald J. Trump’s inauguration on January 20, 2025, significant shifts in U.S. immigration policy are anticipated, and U.S. business immigration could be impacted from 2025. Drawing from the policy directions and initiatives from the president-elect’s first term (2017-2021), in this GMS Flash Alert we describe some possible changes that could reflect similar principles and priorities.
WHY THIS MATTERS
During the first term of the Trump administration (2017-2021) significant policies were implemented that emphasized stricter enforcement and restricted avenues for both humanitarian and employment-based immigration. In light of campaign pronouncements and published policies, it is anticipated that President-Elect Trump will pursue similarly comprehensive reforms in his upcoming second term. Consequently, employers are expected to encounter greater challenges in accessing foreign talent during President-Elect Trump's second term. Employers and sponsored foreign nationals are anticipated to face:
- stricter eligibility requirements and administrative hurdles for U.S. work permits, especially in the H-1B category and the PERM process;
- entry restrictions, including travel bans and extensive security screening;
- increased costs to U.S. work permit and green card sponsorship;
- higher rates of Requested for Further Evidence (RFEs) and denials;
- increased processing times due to extensive biometrics, background and security checks, as well as, in-person interviews;
- impacts to humanitarian progams: Deferred Action for Childhood Arrivals (DACA) and Tempory Protected Status (TPS); and
- greater enforcement and compliance obligations, especially with respect to I-9 verification and site-inspection audits.
As in the past, many of these changes can be enacted swiftly through presidential executive orders and adjustments in policies at the U.S. immigration agency level. Employers should be prepared to navigate through these additional hurdles and plan ahead to address the potential effects on their workforce.
Key Changes Anticipated for U.S. Employers and Foreign Workers
Prevailing Wage Increases for LCA-based Cases: The first Trump administration attempted to increase the prevailing wage requirements for foreign workers on LCA-based work permits, including the H-1B, as well as for the PERM process.1 In doing so, it sought to protect U.S. workers from lower-wage competition. A U.S. District Court in California later vacated this rule.2
More Requests for Evidence: There was an increase in the number of Request for Evidence (RFE) and denials issued under the first Trump administration. This was partly due to the elimination of deference to prior petitions and requiring U.S. immigration agencies to view an extension petition on its own merits as if it was an entirely new petition.3 The Biden administration reversed this policy. 4
Increased Requirements for H-1B Petitions: The first Trump administration sought to increase the requirements for filing U.S. work permit applications, especially the H-1B specialty occupation worker program. These changes included: narrowing the criterion of “specialty occupation” and “employer-employee relationship,” for the H-1B classification, which made it more difficult to secure approval; and placing restrictions on H-1B workers placed at third-party client sites by requiring detailed documentation on control and supervision. 5
Expansion of the Public Charge Rule: The first Trump administration expanded the criteria for determining whether an immigrant applying for permanent resident status would likely become a “public charge,” i.e. dependent on government benefits. 6 The expanded criteria considered whether the applicant had received or was expected to receive food assistance, Medicaid, housing assistance, or other public benefits.7 This change meant that immigrants using or likely to use these services could be denied a green card. The current administration under President Joe Biden ended the use of this rule.8
Mandatory Interviews for all Visa and Green Card Applicants: The first Trump administration required mandatory in-person interviews for all visa and green card applicants.9 This led to an increase in processing times before the non-immigrant/immigrant process could be completed.
Challenges to the Deferred Action for Childhood Arrivals (DACA) and Temporary Protected States (TPS) Programs: The first Trump administration attempted to eliminate the DACA program, which provides temporary protection from deportation and work authorization to undocumented immigrants who arrived in the U.S. as children.10 The U.S. Supreme Court allowed the DACA program to continue, focusing on the legality of the termination process.11 The first Trump administration also sought to end TPS protections for nationals from certain countries, including Haiti, Honduras, Nicaragua, Sudan, and El Salvador.12
KPMG INSIGHTS
Employers can anticipate additional areas for compliance in an increased enforcement environment starting in the first quarter of 2025, following President-Elect Trump’s inauguration. Moreover, an increase in eligibility requirements, RFEs, and slower processing times are expected to delay the entry and onboarding of sponsored foreign nationals, potentially making efforst to bring foreign nationals into the United States for work more challenging and complex. Employers and the sponsored foreign nationals are encouraged to work closely with KPMG Law LLP to plan effectively to navigate the anticipated hurdles and challenges.
KPMG Law LLP in Canada will be tracking this matter closely. We will endeavor to keep readers of GMS Flash Alert informed on any important developments as they occur.
Footnotes:
1 See: https://www.govinfo.gov/content/pkg/FR-2020-10-08/pdf/2020-22132.pdf.
2 U.S. Chamber of Commerce v. DHS, 504 F. Supp.3d 1077 (2020).
3 USCIS, USCIS Updates Policy to Ensure Petitioners Meet Burden of Proof for Nonimmigrant Worker Extension Petitions (October 23, 2017).
4 USCIS, Policy Alert, Deference to Prior Determinations of Eligibility in Requests for Extensions of Petition Validity (April 27, 2021).
5 Federal Register, Strengthening the H-1B Nonimmigrant Visa Classification Program, 8 CFR Part 214.
6 Federal Register, Inadmissibility on Public Charge Grounds; Implementation of Vacatur, 8 CFR Parts 103, 212, 213, 214, 245, 248.
7 Same as above.
8 Federal Register, Inadmissibility on Public Charge Grounds; Implementation of Vacatur, 8 CFR Parts 103, 106, 212, 213, 214, 245, 248.
9 USCIS, USCIS to Expand In-Person Interview Requirements for Certain Permanent Residency Applicants (August 28, 2017).
10 U.S. Department of Homeland Security, Rescission of Deferred Action for Childhood Arrivals (DACA) (Release date: September 5, 2017).
11 Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020).
12 Presidential Proclamation 9842, “DCPD-201900070 - Proclamation 9842-Addressing Mass Migration Through the Southern Border of the United States,” on the GovInfo.gov website.
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Disclaimer
* Please note the KPMG International member firm in the United States does not provide immigration or labour law services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.
The information contained in this newsletter was submitted by the KPMG International member firm in Canada.
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