President Trump Redux – Potential Impacts on the Immigration Landscape

On Monday, January 20, President-elect Trump will take office for his second term. Immigration practitioners take some level of comfort in having already dealt with four years of a Trump presidency. However, rhetoric from the Trump campaign along with hardline appointees to the new Trump administration indicate that a more restrictive and punitive approach to immigration is in our immediate future.

Most notably, President-elect Trump’s appointments of Stephen Miller as Deputy Chief of Staff for Policy, Thomas Homan as “border czar,” and Kristi Noem as Secretary of the Department of Homeland Security signal a new era of enforcement and a restrictionist approach to lawful immigration.

This article discusses potential impacts on various aspects of US immigration.

Arrest and Removal of Undocumented Individuals

It is very clear that the Trump administration’s primary focus will be on removing undocumented individuals. President-elect Trump repeated in prepared remarks during his campaign, “On Day one, I will launch the largest deportation program in American history.” Thomas Homan stated earlier this year, “I will run the biggest deportation force this country has ever seen.” At the recent Trump campaign rally at Madison Square Garden, Stephen Miller made the statement, “America is for Americans and Americans only.”

Impact to Individuals

Putting aside the fact that all individuals have a right to an administrative hearing prior to being removed from the United States, those in the United States without lawful status will live in fear of being arrested and confined, and having their family members held separately.

Impact to Employers

Employers in industries that are known or suspected to have a high percentage of unlawful workers (e.g., manufacturing, agriculture, food processing, hospitality, construction, and service occupations) face the risk of having Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI) conduct onsite workplace raids.

Employers in these target industries should have a plan in place if HSI agents arrive unannounced, and should ensure that frontline personnel are aware of the plan; know who within or outside the company should be contacted in the event of a workplace raid; and know what procedures may be in place to support and protect employees.

For a set of detailed recommendations on how to handle a workplace raid, please contact your Mintz immigration attorney.

Elimination of Existing Immigration Benefits

The incoming Trump administration will likely consider terminating or letting lapse a number of existing programs that benefit foreign nationals, including:

Deferred Action for Childhood Arrivals (DACA)

DACA was enacted by the Obama administration in 2012, through a memorandum from the Department of Homeland Security (DHS). DACA provides temporary relief from removal, and eligibility for work authorizations, to certain individuals who came to the US prior to their 16th birthday, and who have resided continuously in the US since June 15, 2007. USCIS estimates that over 578,000 individuals are currently in DACA status.[1]

The program has been subject to several legal challenges, including a rescission of the rule by President Trump in 2017, which was ultimately overturned by the Supreme Court.[2] President Biden published a regulation in 2022[3] to preserve DACA.

The DACA program is already on life support. In September 2023, a US District Court in Houston ruled that the DACA program was unlawful.[4] The Biden administration has filed an appeal which is currently pending with the Fifth Circuit Court of Appeals. However, the Trump administration may drop this appeal and if so, DACA will be rescinded. This action may lead to further lawsuits, but in the interim, employers with employees in DACA status should work with immigration counsel to determine if there are alternative status and employment options for these individuals.

Temporary Protected Status (TPS)

TPS is a temporary humanitarian parole program that is authorized by Congress for nationals of certain countries where there is armed conflict, a natural disaster, or other extraordinary conditions making a return to that country difficult. There are currently 16 countries that are designated for TPS.[5] TPS allows nationals of a designated country who were in the United States at the time of designation to remain in the US without risk of deportation, and to apply for work authorization.

TPS is designated for a limited period of time, and Congress must reauthorize TPS for nationals of a designated country to continue to receive TPS benefits. It is likely that a Republican-controlled Congress may let TPS lapse for several countries, based on the tenor of rhetoric before and after the election. TPS beneficiaries should also seek advice on other possible status options in the United States.

Termination of Humanitarian Parole Programs

One of the more controversial topics during the election involved rhetoric surrounding Haitian nationals entering the US under a Humanitarian Parole program, whom Vice President-elect J.D. Vance incorrectly described as “illegal aliens.” The Biden administration enacted two Humanitarian Parole Programs that large numbers of individuals took advantage of Uniting for Ukraine[6] and Parole for Cubans, Haitians, Nicaraguans, and Venezuelans.[7] The Department of State (DOS) estimates that 170,000 Ukrainians have entered the United States via Humanitarian Parole.[8] US Customs and Border Protection (CBP) estimated in December 2023[9] that 327,000 nationals from Cuba, Haiti, Nicaragua, and Venezuela were admitted to the US via Humanitarian Parole.

These Humanitarian Parole programs were designated by the Biden administration, and we anticipate that these programs will be terminated soon after President Trump takes office. The president-elect has also threatened to deport individuals who are in the United States as parolees under these two programs.

It is very unlikely that individuals with lawful parole status could have their status rescinded or be removed from the United States. However, the Trump administration’s inability or unwillingness to focus on the facts of parole status could lead to unlawful arrests or detention.

Travel Bans

One of the starkest actions in the first Trump administration was his travel ban on seven Muslim-majority countries. In his first week in office, President Trump signed an executive order that banned foreign nationals from seven countries from entering the United States for a period of 90 days. This executive order took immediate effect, and many foreign nationals who had already boarded flights were detained by CBP and not allowed entry to the United States. Over the next 48 hours, these individuals were in legal and physical “limbo” until an emergency preliminary injunction was granted by a federal court which issued a temporary, nationwide injunction to halt the travel ban.

A history of the Trump travel bans can be found here, courtesy of the ACLU of Washington.

It would not be surprising for the Trump administration to issue new travel bans once he takes office. Subsequent travel bans in the first Trump administration had a one-week notice period before taking effect. We would expect new travel bans to have a similar effective date. Foreign nationals who are abroad would be wise to remain travel-ready to return to the United States if new travel bans are enacted.

Restrictions on Employment-Based Immigration

During the first Trump administration, business immigration practitioners learned early on that policy directives (notably “Buy American, Hire American”) would push USCIS to apply a more restrictive interpretation to eligibility for employment-based nonimmigrant (temporary) and immigrant (permanent) petitions. Often, these USCIS challenges to employer-sponsored petitions were not supported by law or regulation. Ultimately, the rate of USCIS denials increased, but not dramatically. As a result, a number of practitioners who sued the government in federal court were able to obtain precedent-setting decisions that ruled USCIS’s decision-making to be unlawful.

Ultimately, one of the biggest struggles during the first Trump administration was “Legislation by Delay” and “Legislation by Denial.” (These terms were borrowed with permission from a client.) USCIS processing times slowed dramatically, and there was an increase in denials for approvable cases.

There are several steps that employers can take to prepare for a more restrictive climate at USCIS.

File Early

Employers should be proactive in initiating extensions of nonimmigrant status and initiating permanent residence applications. We recommend that employers file extension petitions as early as possible, and use Premium Processing (at a hefty price of $2,805 per petition). This ensures that if there is an unjust denial of the extension, the employee remains in lawful status and has multiple options for maintaining status without interruption.

Anticipate Delays

Shifting priorities at DHS may result in greater resources being allocated to ICE for enforcement, detention, and renewal, and a resulting decrease in resources for USCIS in adjudicating applications for benefits. USCIS processing times slowed significantly under the first Trump administration, and we anticipate similar delays in processing.

In addition to USCIS processing delays, the Department of Labor (DOL) processing times for PERM applications are historically slow. At present, the PERM process from start to finish is currently taking a minimum of 21 months, and often longer. It is quite possible that DOL funding will be reduced under the Trump administration, which would lead to staffing and contractor shortages and further delays in processing times. Employers are encouraged to initiate permanent residence sponsorship for employees in temporary visa status earlier than normal, in anticipation of ongoing and worsening delays in processing times.

Finally, the Department of State (DOS) could both reduce staffing at United States Embassies and Consulates and increase the frequency of initiating “Administrative Processing” for visa applicants. Administrative Processing delays visa issuance until DOS can conduct additional background screening. Foreign nationals who are traveling internationally and who must apply for a visa to return to the United States should plan for possible delays in processing.

Anticipate Policy Changes

We expect that USCIS under the Trump administration will revoke or limit two existing policies:

Deference Memo:

The Biden administration reinstated the “Deference Memo,” which was originally created in 2004 by USCIS, and was rescinded by the Trump administration in 2017. The Deference Memo instructs officers to give deference to a prior petition approval, if an extension or amendment petition involves the same parties and similar facts, unless USCIS finds “a material error, material change in circumstances or in eligibility, or new material information that adversely impacts the petitioner’s, applicant’s, or beneficiary’s eligibility.” The Trump administration will likely rescind this memo again, leading to less certainty in USCIS approval of extension petitions.

Updated Guidance on Eligibility:

USCIS under the Biden administration also issued expanded guidance for benefits such as National Interest Waiver (NIW) and EB-1 petitions for immigrants of extraordinary ability and O-1 petitions for nonimmigrants of extraordinary ability. This guidance created a more favorable landscape for individuals with STEM degrees and for entrepreneurs and allowed for alternative evidence to be submitted to meet certain eligibility criteria. USCIS under the Trump administration may either rescind or ignore this guidance, making it more difficult for certain individuals to qualify for these categories.

Increased Burdens on Adjustment of Status (Permanent Residence) Applicants

It is also likely that USCIS under the Trump administration will reinstate two hurdles to individuals who are filing form I-485 Applications for Adjustment of Status to Permanent Residence.

Form I-944, Declaration of Self-Sufficiency

This was implemented under the previous Trump administration. Most applicants for Adjustment of Status were required to complete a Form I-944 Declaration of Self-Sufficiency and submit voluminous supporting documentation to show the applicant’s income, assets, and liabilities. This was a “Form over Substance” initiative as there is already a requirement that adjustment applicants demonstrate that they will not become a “Public Charge.” The I-944 largely served to make the process more cumbersome for all applicants.

The “90-Day Rule” for Adjustment Applicants

USCIS under the Trump administration issued a rule that created a presumption of misrepresentation if a person entered the US using a strict nonimmigrant visa,[10] and then took any steps towards applying for permanent residence within 90 days of entry. If a person applied for Adjustment of Status within 90 days of entry on a strict nonimmigrant visa, the government presumed that the person committed visa fraud when entering the US as they had the intent to become a permanent resident. That could be used by USCIS to deny the permanent residence application, and also challenge the applicant’s last entry as unlawful.

Litigation

Finally, employers and individuals should consider litigation to challenge decisions by DHS agencies that are not supported by law or regulation. Many practitioners had success in challenging these decisions in federal court, which both created precedent for future filings; and also caused the agencies to alter their course and adjudicate most cases in accordance with the law.

Conclusion

The immediate future for many foreign nationals in the United States will be stressful, particularly for those without status. Mintz will continue to publish alerts on major updates and changes in immigration policy through our Mintz Insights Center.

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