As we head into another Trump presidency later this month, many U.S. employers are wondering how the new administration’s strong stance on immigration might impact their organization, including its ability to hire and retain foreign workers. While we don’t know exactly what changes will occur, this article details a few ways in which the incoming administration’s immigration policies could tangibly impact U.S. employers. This list is by no means exhaustive and none of these changes are guaranteed; rather, it is intended to provide a high-level overview of important points of consideration for employers as we move into the new presidential administration.
Increased Immigration Worksite Enforcement Activity, Including I-9 Audits
Instances of worksite investigations are likely to increase, as we saw during the last Trump administration. Employers in certain industries may be more likely targets of such investigations, including agriculture, construction, and manufacturing. Employers who do not participate in the E-Verify program may also be more likely to experience enforcement activity.
While workforce enforcement matters can take several forms, one that all employers should be ready for is an I-9 audit. During an I-9 audit, U.S. Immigration and Customs Enforcement (ICE) agents and auditors review an employer’s Form I-9 records and assess fines and/or other penalties (potentially even criminal) for any violations. To help mitigate the risks of fines and penalties, employers should self-audit their I-9 records with help from immigration counsel to discard any that are no longer required to be maintained and correct any identified errors. Employers should also generally review their I-9 practices and procedures to make sure they are fully compliant with applicable I-9 completion requirements and provide needed training to relevant employees. If an employer identifies any unauthorized U.S. employment during this process, immediate corrective action should be taken; employers who knowingly employ undocumented workers can face significant fines and other penalties, including revocation of business licenses and even imprisonment for those employers that are found to have engaged in a pattern or practice of knowingly employing unauthorized workers.
Instances of ICE agents showing up at businesses and attempting to inspect the premises and collect information or documentation (or even detain an individual) may increase, as they did during Trump’s previous administration; business audits and criminal investigations by ICE special agents and auditors surged early in Trump’s previous presidency. Employers should implement preparedness plans with the help of immigration counsel so that employees know what to do in the event of an ICE visit, and those employers who do experience a visit from ICE should contact their counsel immediately to ensure that proper paperwork authorizing an inspection is in place and any inspection is conducted legally.
Moreover, for those employers who sponsor foreign workers, worksite visits from the Fraud Detection and National Security Directorate (FDNS) of U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of Labor (DOL) could become more commonplace. For this reason, employers should ensure that any required compliance files (such as Labor Condition Application files required to be maintained for sponsored H-1B workers) are in good shape and properly updated, and they should take any corrective action if errors or gaps are identified to help mitigate any penalties. Employers should also ensure that their sponsored foreign national employees are working in the positions, locations, and under the other relevant terms and conditions reflected in their most recent status petition, as well as being paid in accordance with any applicable prevailing wage requirement.
Lastly, worksite “raids” at large workplaces in target industries may become a more regular reality as part of the Trump administration’s plans for mass deportation of undocumented immigrants. Under the previous Trump administration, worksite raids began shortly after he took office in January 2017 and increased in frequency over time, as did the number of arrests.
More Requests for Evidence and Audits, Longer Processing Times
Immigration officers may start to review petitions and other filings for immigration benefits (for temporary immigration status and permanent residence) with stricter scrutiny, resulting in increased instances of challenges such as Requests for Evidence (RFE) or Notices of Intent to Deny (NOID) and audits from the DOL for permanent labor certification (PERM) applications. Increased challenges to benefit requests may also contribute to an increase in overall processing times for many benefits, as officers dedicate more time and resources to reviewing initial petitions, preparing RFEs or other notices, and reviewing subsequent responses. Relatedly, it is also possible that we will see a reduction in available premium processing benefits over time.
Certain Foreign National Employees Could Lose U.S. Work Authorization
The new administration may do away with (or decline to renew) current programs that provide general work authorization to certain individuals who are in the U.S. under deferred action programs, including Consideration of Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS).
While perhaps less likely but still possible, other forms of U.S. work authorization are also potentially in jeopardy, including work authorization for eligible spouses of H-1B temporary workers and even post-graduate work authorization (Optional Practical Training) for international students in F-1 status who graduate from U.S. colleges or universities. Such a change could potentially make it more difficult for U.S. employers to find needed workers, particularly in technical fields.
Increased Prevailing Wages for Certain Foreign Workers
For H-1B, H-1B1, and E-3 workers as well as PERM-based green card applicants, the salary offered for the sponsored position is part of the general eligibility criteria. To sponsor a foreign national worker in one of these categories for a non-unionized position, the employer is required to pay the foreign worker at least the “prevailing wage” (i.e., market annual salary or hourly wage) as determined by the DOL’s wage data.
In 2020, the DOL under the then-Trump administration published a new rule that significantly raised the minimum prevailing wage required for many occupations; the rule was eventually blocked on procedural grounds and did not go into long-term effect, but it is possible that the new administration will try again. This change would make it more costly to employ H-1B workers and sponsor them for permanent residence through the PERM process.
Increased Visa Wait Times Abroad and Travel Bans
Employers may also face disruptions in business operations if foreign national employees experience delays in returning to the U.S. after trips abroad.
One such delay could be caused by longer processing times at U.S. consulates and embassies to obtain visas that foreign workers need to travel to the U.S to start or continue their U.S. employment. Longer processing times could be a result of additional background and security checks on visa applicants (known as “administrative processing”) or potentially even strained U.S. Department of State resources.
Another potential delay could result from international travel bans. During his last administration, President Trump issued an Executive Order imposing a travel ban to the U.S. for travelers from certain (mostly majority-Muslim) countries, citing national security concerns. This ban took effect immediately upon his taking office and applied initially to seven countries, and was eventually expanded to include additional countries. Similar travel bans are anticipated from the incoming administration and could potentially interfere with the ability of U.S. businesses to employ foreign workers with needed skills from affected countries.
