Immigration and Employment of Foreign Nationals: A Look Ahead

As we close out the year and look ahead to 2025, employers are anticipating a number of changes to worksite enforcement, foreign trade and immigration policies.

Immigration enforcement was a central plank of President-elect Donald Trump’s pitch to voters. While much of this enforcement is likely to focus on removal operations, employers should prepare for significant increases in worksite enforcement as well. The new administration’s impact is likely to be felt in the following ways:

• An increase in I-9 audits
• A return to worksite raids
• Increased onsite audits and inspections of public access files and PERM-related recruitment materials
• Further changes to I-9 regulations and the availability of auto-extensions
• Attempts to expand the mandatory use of E-Verify
• Continuing efforts by the U.S. Department of Justice’s Immigrant and Employee Rights Section (IER) to scrutinize “reverse discrimination” against U.S. workers

The first Trump administration increased I-9 audits conducted substantially as compared to the Obama and Bush years – statistics suggest that the number of audits per year nearly doubled under then-President Trump. Worksite raids were also conducted for the first time in a decade. Such raids became an essential component of U.S. Immigration and Custom Enforcement’s (ICE) attempts to identify undocumented workers and will likely play a key role in President-elect Trump’s enforcement and deportation goals.

Another change may include the termination of auto-extensions for certain forms of work authorization. For example, the new administration may seek to undo auto-extension categories that allow applicants for certain types of immigrant benefits to continue legally working while U.S. Citizenship and Immigration Services (USCIS) processes renewals, or to eliminate the availability of work authorization in such instances. Such changes will create additional I-9 compliance burdens for U.S. employers.

The federal government is likely to seek additional tools to make the use of E-Verify mandatory, whether through legislation or through regulatory changes. Complicating such efforts is the increase in state legislation attempting to regulate the use of E-Verify. Illinois, for example, recently passed amendments to its Right to Privacy Act that imposes additional responsibilities on Illinois employers enrolling in E-Verify.

In addition, the IER is likely to continue focusing on reverse discrimination. In this context, reverse discrimination refers to citizenship status or national origin discrimination against U.S. citizens or workers. In the past few years, the IER has expanded the scope of its enforcement actions to scrutinize labor market tests in support of the PERM or labor certification process. Such enforcement actions are likely to increase and potentially expand into more novel areas.

What Changes Could Arise in Nonimmigrant (Temporary) Visa Categories?

Here are five expected changes to the H-1B visa category:

1. Increase in Scrutiny

a. Following the trends observed from 2017-2021, we anticipate another increase in the rate of denials and requests for evidence. From Fiscal Year 2017, the H-1B lottery season immediately preceding the 2016 election, to Fiscal Year 2018, the denial rate for H-1B petitions increased from 10 percent to 24 percent. Within the same year, requests for evidence jumped from 17 percent in August 2017 to 56 percent in December 2017.

2. Elimination of Deference Policy

a. An increase in scrutiny will likely be coupled with the elimination of the deference policy, assuming it is not codified prior to the end of President Joe Biden’s term. Should the deference policy be rescinded, like it was in 2017, employers should engage in a careful review of H-1B extensions, strengthening the evidentiary component as much as possible prior to filing.

3. Change in Consular Processing Procedures

Then-President Trump’s 2017 “Buy American, Hire American” executive order resulted in heightened scrutiny for visa processing at U.S. consulates abroad. Given President-elect Trump’s “America First” criteria, we can expect similar directives to consular officers in early 2025. Those requiring visa appointments may experience delays and challenges given changes in consular protocols.

Employees in H-1B status who plan to travel outside the United States to secure a new H-1B visa stamp should consult with their human resources departments or legal teams prior to securing an appointment.

4. Reduction of Applicable Job Categories

Employers should anticipate a second attempt by President-elect Trump to restrict the job categories eligible for H-1B visas, including scientists and engineers. The prior Trump administration first attempted this change in 2020 through publishing a rule that was ultimately blocked for violating the Administrative Procedure Act. The subsequent attempt did not come to fruition either, given its interruption by President Biden.

Had such rules proceeded, eligibility for the H-1B visa category would have narrowed to positions requiring a degree in a directly related specialty, as well as increased evidentiary requirements for third-party placements and shortened validity periods.

5. Restructuring the H-1B Lottery and Reprioritizing Wages

Most likely, the incoming administration will attempt to transition the current system to a merit-based one. We predict a second attempt at the restructuring of the H-1B visa lottery; the change did not materialize during the first Trump administration.

This reprioritization of wages through regulations likely will occur within the first half of a second Trump administration, building upon a USCIS regulation finalized, but not implemented, in January 2021. Had it taken effect, the regulation would have instituted a selection process that prioritized H-1B registration submission based upon the wage level to be paid to the proposed beneficiary, making it nearly impossible for entry level employees such as recent college graduates to obtain an H-1B visa.

There also will be changes in other nonimmigrant categories, such as:

• Employment Authorization for H-4 Dependents (H-4 EAD). The incoming administration may attempt to rescind the ability of certain spouses of H-1B employees to secure employment authorization documents (EAD). Employers should be prepared for the potential impact of the loss of employment authorization of their H-4 EAD workforce and explore alternative options for seeking employment authorization. Additionally, employers should be prepared for requests for assistance or pay increased by H-1B employees impacted by the potential loss of income provided by their H-4 EAD spouse.
• Employment Authorization for Students: OPT EAD and STEM OPT EAD. The administration may seek to rescind federal regulations that provide employment authorization to foreign national students present in the U.S. on an F-1 visa. Employment authorization through the Optional Practical Training (OPT) program allows foreign students to remain in the U.S. for up to three years after graduation while searching for work. OPT and STEM OPT (an extension sometime available for STEM graduates working for an E-Verify enrolled employer under a formal training plan) is seen as a pathway to obtaining H-1B employment authorization.
• TPS and Humanitarian Programs and Accompanying Employment Authorization. The incoming administration is likely to attempt to terminate Temporary Protected Status (TPS) and the accompanying employment authorization document (EAD). TPS is a temporary program whereby a president can designate a foreign country for TPS due to conditions that temporarily prevent the country's nationals from returning safely. Likewise, humanitarian programs like Deferred Enforced Departure and parole for Ukrainians are likely to be terminated by the incoming administration. If these programs are terminated, then the individuals here pursuant to these programs will lose their employment authorization unless they can change to another immigration category.
• Deferred Action for Childhood Arrivals (DACA). The incoming administration is likely to attempt to rescind DACA and the accompanying EAD. Like the H-4 EAD, DACA is covered by federal regulations and as a result, may not be eliminated by an executive order or other similar action. To end DACA, the administration would need to undergo a notice and comment process. Employers should be prepared for DACA’s termination and explore alternative options for seeking employment authorization for impacted employees.

How Might Export Control Laws Affect Employment of Foreign Nationals?

Foreign persons working in the U.S. under a visa and employment authorization may raise “deemed export” concerns under U.S. export control laws. A "deemed export" refers to the transfer of controlled technology or information to a foreign national located within the United States, which is considered legally equivalent to exporting that technology to the employee’s home country, even though the technology never physically leaves the United States.

Whether a deemed export will require an export license depends on 1) the kind of controlled information or technology and 2) the foreign employee’s nationality.

Hiring foreign nationals in certain fields may require employers to assess whether the employee's access to export-controlled information may constitute a deemed export and could potentially necessitate obtaining an export license before commencement of employment. USCIS Form I-129 requires an export control certification regarding release of controlled technology or technical data to foreign persons in the United States.

Certain technologies may become more stringently controlled under the incoming Trump administration, such as technologies related to artificial intelligence (AI), quantum computing, and semiconductors, among others. Consequently, U.S. employers may require an export license more frequently to authorize their foreign national employees to work on projects involving such technology. In addition, foreign employees with nationalities of countries such as China, Russia, and others may be subject to additional licensing requirements.

Potential Effects on the Department of State Consular Services and Visa Processing

Changes to regulations are subject to notice and comment, whereby policy and guidance can be implemented without such oversight. Some predictions for what could change in this area include:

• The return of a Buy American, Hire American policy where justifications for not hiring a U.S. worker for the position will be required
• Attrition in experienced consular staff or budgetary cuts for new consular officers, along with restrictions on local staffing that supplements the work of U.S. consular officers. This occurred in the first Trump administration.
• Reversal of the Waiver of In-Person Interviews leading to a return to in-person interviews of all applicants and increased wait times for appointments
• Travel bans on nationals of certain countries based on national security concerns. There are elements of discrimination based on race, religion or national origin where these actions could be challenged.
• Increased security vetting could elevate the timeline from 30 days to 90 days to many months or years, based on prior history.

What Should Employers Do to Prepare?

In anticipation of these changes, employers should consider implementing the following:

• U.S. employers, especially those in defense and “hi-tech” industries, should stay informed about proposed changes to U.S. export controls to ensure that any export licenses that may be required can be obtained in a timely manner, so as to minimize staffing disruptions and unauthorized releases of technology to foreign employees.
• In advance of the next fiscal year’s H-1B lottery, employers should review proposed registrants with competent immigration counsel, to carefully review eligibility standards if new criteria are established and to minimize risks of failing to overcome a request for evidence.
• Review, improve and implement the company’s compliance program. In particular, employers should:

1. Review Forms I-9 and PAFs to ensure compliance with recordkeeping requirements. We expect the new administration to increase the number of audits for both I-9 enforcement and for H-1B compliance.

2. Determine which employees are working under humanitarian EADs such as TPS or DACA, and engage with immigration counsel to determine if there are other options for the employee to remain working if the new Trump administration eliminates such EADs.

3. Prepare for worksite visits from Fraud Detection and National Security Directorate (FDNS) immigration officers: are people working where their H-1B or L-1 petition says they will be working?

4. Consider starting green card cases, including PERM labor certifications, earlier. For example, if company policy is usually to wait until the third or fourth year in H-1B status, consider moving that to year two, because the process could become even more lengthy than it currently is.

5. Consider filing extensions soon. But if this is not possible (because most extensions cannot be filed earlier than six months in advance), consider consulting with counsel to determine if amendments are possible (such as job duty, location, or salary changes).

6. Review business travel needs for employees on nonimmigrant visas (NIV) to ensure their visa stamps are current to permit reentry.

a. Also consider whether such employees are from countries that are on (or could be placed on) the state-sponsored terrorism lists (such as Iran and Syria), which could be subject to travel restrictions or outright travel bans.

b. Be aware of possible administrative delays in consular processing for visa and other approvals.

7. Review key employees working under certain NIVs to determine whether they can be relocated to other company facilities in other countries.