The Reality of Immigration Changes & Challenges Under the Second Trump Administration

Based on his most recent campaign and his previous time as President, many are anticipating that when Trump takes office again there will be a renewed push for more restrictive immigration polices. Despite there still be overwhelming uncertainty as to the specifics of his immigration policies, the general cornerstones seem to call for an increase in immigration enforcement and a decrease in the amount of immigration to the United States. That said, how realistic is Trump’s agenda?

Work Visas

Trump’s prior administration put in place many restrictions to make it harder for American companies to obtain employment-based visas for immigrant workers. It is likely he will increase scrutiny on H-1B visas. Specifically, the government may scrutinize the specialty occupation of H-1B positions and require more justification of the field of study that is required for the position. Additionally, USCIS may look more closely at job descriptions and requirements to determine whether H-1B petitions are categorized at the appropriate wage levels. We may also see the Trump administration try to increase wage levels that employers must pay foreign nationals for H-1B positions. Lastly, the administration may seek to rescind the H-4 (spouses of H-1B) Employment Authorization Document (EAD) work permit program.

During the first Trump administration we also saw high rates of Requests for Evidence (RFEs) and denials for other nonimmigrant work visa petitions. These ranged from attacking whether the position met the definition of executive, managerial or specialized knowledge (in the L-1A or L-1B visa context), whether the foreign national’s skills were truly extraordinary (in the O-1 visa context), or the professional nature of the duties to be performed by TN visa beneficiaries.

While it is reasonable to expect that the new administration may add new statutory restrictions, institute stricter U.S. recruitment requirements, or increase USCIS filing fees, what benefit would the U.S. achieve by limiting the amount of intelligent, professional-level foreign nationals into this country - especially as U.S. businesses are increasingly in need of high-skilled labor (in particular in STEM fields)?

Green Cards

Trump previously proposed limiting family-based green cards by focusing on immediate family members only, such as spouses and minor children, while restricting categories for adult children, siblings, and parents of U.S. citizens. This could mean fewer green cards for extended family members. There may also be tighter regulations on employment-based green cards, with more scrutiny on employers and the types of positions qualifying for green card sponsorship. This could mean higher thresholds for salary and skill levels, potentially reducing the number of employer-sponsored immigrants. Additionally, we may see PERM Labor Certifications take significantly longer. We may also see a return to in-person interviews for employment-based green cards which would significantly increase the time it takes to get a green card.

Trump might also revive and expand the public charge rule, which could screen out immigrants deemed likely to rely on public benefits. This would likely restrict green cards for those with lower income or limited education, as they may be classified as "public charges."

Visa Application and Wait Times

The Trump administration may eliminate visa interview waivers (especially for H-1B visa applicants) which would dramatically increase the time it takes to go through the process to obtain a visa at a foreign consulate. The Department of State may also limit the availability of visa interviews for third-country nationals at third-country U.S. Consulates, which could result in long visa wait times and backlogs. 

F-1 Students

In addition to stricter enforcement of compliance and maintenance of F-1 student status, its possible that the Trump administration may target the Optional Practical Training (OPT) program for foreign students on F-1 student visas who graduated with degrees in science, technology, engineering, and mathematics (STEM), to allow them an additional two years of U.S. work authorization.  The administration may also seek to implement rules that would immediately make an F-1 student unlawfully present upon violation of status.

Again, though, with U.S. employers in desperate need for STEM employees, cancelling the STEM OPT extension rule would severely injure American companies.

Naturalization

The Trump administration may impose more stringent residency and employment requirements, such as longer continuous residence in the U.S. before applicants can apply for naturalization. They may also increase scrutiny on applicants’ backgrounds, with stricter checks for any prior interactions with law enforcement or issues regarding public benefits use. We may also see a revision to the civics exam and longer processing times.

Undocumented Immigrants

The deportation of an estimated 11 million undocumented immigrants from the United States is almost impossible. If, however, his intention is to prioritize the removal of around 2-3 million undocumented immigrants with criminal records, this would be a position that is actually in line with the current administration’s priorities.  

Deporting all undocumented immigrants from the U.S. will require incredible amounts of new resources and funding. While many congressional Republicans might support Trump’s policies, would they support the cost?  Estimates say it would cost over $175 billion to deport all of the undocumented immigrants in our country and complete a border wall.  (No, by the way, Trump can’t force a country to spend money on something it does not want).  The Bipartisan Policy Center estimates that Trump’s immigration attrition policies could increase projected deficits by about $800 billion over the next 20 years.  By keeping immigrants in this country working, creating businesses, and making the goods and services that people want to buy we are ultimately increasing wages and employment opportunities.  Would Republicans really be so foolish as to actually spend money on large-scale nationwide attrition programs?

In the end, it is realistic to expect some changes to the U.S. immigration system.  Whether all the broad promises of Trump’s campaign will become reality is a different story.  In less than 75 days, though, Donald Trump will take the oath of office as the next president of the United States.  Therefore, employers and individuals considering whether to seek certain immigration-related benefits, should act sooner than later.  In the meantime, please visit our website and sign up for our newsletter for the latest news regarding any changes to U.S. immigration laws.