U.S. Immigration Considerations in a Second Trump Administration

Posted on February 13, 2025 by Parker Gallini LLP

Introduction

The first weeks of the Trump Administration have been full of activity, much of it aimed at the US immigration system. To date we have seen multiple Executive Orders covering everything from a proposed erosion to the principles of birthright citizenship to instructions to the Secretary of State to articulate new processes for enhanced vetting of foreign nationals applying for visas abroad and for immigration benefits in the United States both generally and specifically from countries that present a security risk to the United States. We have also seen the President place a hiring freeze on most federal agencies, including the US Citizenship and Immigration Service and the US Department of Labor for at least 90 days. These actions and others as well as the general rhetoric of President Trump signal significant changes to the US immigration system including changes that will directly impact “skilled” immigration.

This article will outline areas where it is possible we will see changes that impact “skilled” immigration. It is based both on statements by President Trump, these early Executive Orders as well as on the actions taken in the first Trump Administration.

As an initial matter, it is important to note that while the foundations of U.S. Immigration are governed by federal laws that can only be changed through acts of Congress, much of current immigration policy, including immigration regulations, are controlled by Executive Branch Cabinet Departments and Administrative Agencies under the direction of the President. Changes to immigration policy made through the passage of new laws, regulatory updates, policy directives to the U.S. Citizenship and Immigration Services (USCIS) and other agencies, and Executive Orders may all be challenged through lawsuits, which can impact implementation across the U.S. as court cases progress.

Policy and Practice that Can Change Quickly once the New Trump Administration Takes Office

USCIS and its related Administrative Agencies (Customs & Border Protection (CBP) and Immigration & Customs Enforcement (ICE)) have significant authority to alter existing policy and practice with respect to a wide range of issues under their respective authority. The prior Trump Administration used this authority widely to create delays and uncertainty in the adjudication process and generally to slow down an otherwise already overburdened system to an even great extent.

The following are actions that the new Trump Administration can take in this regard:

The adoption of policies that will “protect the interests of U.S. workers in the administration of our Immigration system”. This was the stated intention of an early Policy Memorandum issued by the prior Trump Administration called “Buy American, Hire American”. We can expect to see similar actions from the new Trump Administration. Covered under this heading were a wide range of policy and practice changes including the aggressive use of Requests for Additional Evidence (RFEs) challenging the approvability of H-1B and L-1 cases and an attempt to alter the way prevailing wages are calculated in the Green Card process, which would have increased required wages well beyond market if the changes had been fully implemented. More likely than not, the new Trump Administration will again move to implement these or similar policies.

Mandatory Interviews and Expanded Biometrics. The prior Trump Administration adopted several new procedures in this area: (i) requiring that all Adjustment of Status applications (the final stage in the Green Card process) have as a last step an in-person interview at a USCIS Field Office and (ii) requiring that all change of status and extension of status applications for derivative family members (H-4 and L-2, as an example) have a Biometrics appointment at a USCIS Application Support Center (ASC). The direct result of these changes was to dramatically slow the adjudication process down for these cases because Field Offices and ASCs were suddenly overwhelmed by tens of thousands of in-person appointments that were not previously required. The Biden Administration ended these policies, but we expect that the new Trump Administration will bring them back quickly.

Potential Elimination or Scaling-Back of Premium Processing. The prior Trump Administration eliminated for a period of time Premium Processing as an option for certain types of cases (including H-1B and L-1 visa petitions) citing overburdened USCIS Service Centers. The result of this was not only longer processing times for common employment-based visa petitions, but also uncertainty in their approval. The new Trump Administration could do the same. In addition, the new Trump Administration could do away with the Biden Administration policy of applying Premium Processing to derivative cases for spouses and children that are filed with, and currently processed concurrently with, a principal foreign national worker’s Premium Processed visa petition. In practice, for example, this could mean that the spouse and/or child of an H-1B worker would have to wait several months for an approval of H-4 status, even if the principal’s H-1B is approved with premium processing,

Expiration of the H-4 Settlement. In early 2023, the USCIS, in response to a lawsuit, agreed to formally bundle the processing of H-4 and L-2 dependent extension and change of status applications (including H-4 and L-2 EAD applications) with the principal foreign national worker’s H-1B or L-1 visa petition. Under the prior Trump Administration, the USCIS had processed each application separately, in accordance with the policy described above. This meant that family members were often waiting for much longer periods of time to get their H-4 and L-2 status extensions and EADs approved. This settlement expired on January 25, 2025, and we are starting to see cases in which the USCIS is not approving H-4 status and EAD extensions after approval of the principal’s H-1B. To-date the USCIS has not stated publicly whether it intends to extend the terms of the settlement or abandon it entirely. The latter seems likely at this point, and this decoupling of H-4 extensions from H-1B processing will create significant hardship and delay particularly for H-4 spouses working on EADs.

Introducing New Forms/Processes. A particularly challenging action taken by the prior Trump Administration was to require that a new form be submitted with an Adjustment of Status Application to show that the applicant is not at risk of becoming a “public charge.” Federal immigration law provides that someone who is or has the potential to become a “public charge” cannot become a U.S. permanent resident. In family-based cases, a process exists for the USCIS to assess this risk, and the family-based immigration process requires that the sponsoring U.S. citizen show that they have adequate income or assets to provide support for their sponsored foreign family member if necessary. In employment-based cases, the public charge risk is usually satisfied by virtue of the fact that the sponsored foreign national has a job offer with the U.S. employer. However, the prior Trump Administration required that a new public charge form be submitted with all Adjustment of Status applications. The form was excessive both in length and in the dozens of documents that were required to be submitted to show the financial status of the applicant. Again, this process increased legal fees and slowed the overall processing time of Adjustment of Status applications. While the new Trump Administration could bring this form back, it is also an example of the types of actions that the Administration could take with respect to forms and required supporting documents for many types of applications that will increase costs, place evidentiary burdens on sponsoring employers and their employees, and delay processing times.

Repeal of the Deferred Action on Childhood Arrivals (DACA) Program. The prior Trump Administration tried to eliminate the DACA program put into effect by former President Barack Obama, but was stymied by the Federal Courts. President-elect Trump has indicated that he wants to eliminate DACA, and it is likely that this is a step he will take. Given the current make-up of the U.S. Supreme Court, the new Trump Administration has an increased chance of success in this regard. Currently, many thousands of immigrants are living and working in the U.S. based on DACA program work authorization. If DACA is eliminated, this work authorization will be lost.

Potential Travel Bans. President-elect Trump has indicated that he plans to close the border with Mexico as an early step in his new Administration generally and he has already closed the border to applicants for political asylum. The New Trump Administration may decide to use travel bans as a bargaining chip in discussions with other countries or may seek travel but ban for countries that are deemed to be a security threat. While the “Muslim” travel ban of the prior Trump Administration was ultimately struck down by the Federal Courts, the current makeup of the U.S. Supreme Court suggests that any new travel ban based on an argument of national security may withstand judicial scrutiny. In this regard we have advised our clients to advise their foreign employees to remain in the U.S. for the early months of the new Trump administration when possible.

Elimination of Parole and Related Work Authorization. Parole is a discretionary status that a U.S. President can authorize for urgent humanitarian reasons or significant public benefit. President Biden authorized significant parole programs for citizens of Cuba, Haiti, Nicaragua, and Venezuela in an effort to provide a legal option for U.S. entry and to dissuade eligible applicants from entering the U.S. without proper documents. President Biden also authorized structured programs for Humanitarian Parole for Afghan and Ukrainian citizens in response to large scale military conflict in both nations. Currently, tens of thousands of people benefit from temporary status and work authorization based on these parole programs. These programs can easily be undone by the new Trump Administration which would leave current beneficiaries without another viable status option and ultimately require that they depart the U.S. or face removal.

Increased Compliance Initiatives. Based on the actions of the prior Trump Administration, it is likely that the new Trump Administration will increase enforcement efforts including I-9 Employment Eligibility Verification audits, workplace inspections, and compliance audits. The new Trump Administration may also push for mandatory use of E-Verify in connection with employment eligibility verification compliance.

Policy That May Change Within the First 1-2 Years of the New Trump Administration

The new Trump Administration will have the authority to change the U.S. economic policy with regard to global trade partners, and incoming Executive Branch Cabinet Department Secretaries and Administrative Agency Directors will have the authority to promulgate new regulations in support of the new Trump Administration’s objectives. It will likely take several months or longer for the consequences of changed economic and trade policies to develop, and federal rulemaking requirements include mandatory timelines for implementing new regulations.

The following are changes that may unfold over the first 1-2 years of the new Trump Administration:

Potential Repeal of USCIS “Deference” Regulation. In the closing week of the Biden Administration, a regulation as finalized to formally adopt a policy of granting deference in the adjudication of temporary visa status extensions provided that there has been no significant change in the underlying terms of eligibility. One of the first actions taken by the prior Trump Administration in 2016 was to withdraw a version of this policy that at the time was simply an administrative guideline. This action ushered in a significant increase in USCIS’ issuance of Requests for Additional Evidence or RFEs. While our Firm was able to get the vast majority of cases approved after responding to RFEs, these additional RFEs increased the costs for our client and added significant delays to the processing of these cases. If the new Trump Administration wants to eliminate the Deference Policy, it will have to promulgate a new regulation to that effect. But this is a relatively easy process that would take several months.

H-1B Lottery Criteria May Change. The prior Trump Administration attempted to base H-1B lottery selection criteria on offered wages. Specifically, the prior Trump Administration created regulations that would rank H-1B lottery registrations based on the offered wage, giving preference to lottery registrations that include an offered wage that aligns with the Dept. of Labor’s Occupational Employment Statistics (OES) Level IV wage or higher and proceeding in descending order. The new Trump Administration could re-implement this policy or create new policy by updating immigration regulations. We note that at this time, the new Administration has taken no action to alter the process of the up-coming FY2026 H-1B Cap Lottery that will take place at the end of March 2025.

Treaty-Based Visas May be Jeopardized by Tariffs. President-elect Trump has promised to implement tariffs with a number of the U.S.’ most prominent trade partners, notably including Canada and Mexico. The U.S., Canada, and Mexico entered into the USMCA Trade Agreement during the prior Trump Administration, replacing NAFTA. Currently, the USMCA authorizes temporary TN immigration status and work authorization for Canadian and Mexican professional workers in a limited number of occupations. If the new Trump Administration takes drastic action by implementing high tariffs, trust in U.S. trade agreements like the USMCA may erode, and other countries could leave these agreements. In the case of the USMCA, this could mean an end to the TN immigrant status option.

Termination of Temporary Protected Status (TPS) Designations. Current U.S. regulations authorize issuance of Temporary Protected Status (TPS) to citizens of Afghanistan, Burma (Myanmar), Cameroon, El Salvador, Ethiopia, Haiti, Honduras, Lebanon, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Ukraine, Venezuela, and Yemen. TPS allows citizens of these countries who have been continuously present in the U.S. for a specified period to have legal status and work authorization in the U.S. President-elect Trump has signaled an intention to eliminate TPS by refusing to renew current TPS designations, which will expire between mid-2025 and the Fall of 2026, depending on the specific country. Without renewed TPS designation, current TPS beneficiaries will lose status and work authorization in the U.S. We note that on February 1, 2025, the President terminated TPS for Venezuela effective as of the end of current extended Venezuelan TPS status in April and September of 2025.

Elimination of Employment Authorization Document (EAD) Eligibility Categories. Over the last several years, USCIS has established new categories of work authorization by regulation, including extended work authorization for graduates of qualifying U.S. STEM degree programs (STEM OPT) and work authorization for the spouses of H-1B nonimmigrants who have reached certain milestones in the green card process (H-4 EADs). Under a new Trump Administration, these or other categories of work authorization could be eliminated, in line with the stated goal of eliminating competition for U.S. workers. In particular, given the current structure of the annual H-1B visa lottery, the potential elimination of STEM OPT could have significant consequences for foreign national graduates seeking employment-based immigration sponsorship.

Systemic Changes to Immigration Law and Policy that May Change in the Long Term

Significant change to the foundations of current U.S. Immigration would require Congressional action. Given the composition of the current Congress, which includes a narrow Republican majority in the House of Representatives and the Senate, change at this level may be possible. However, current Senate rules require a 60-vote majority for legislative action, so bipartisan support would be required for most initiatives.

If Congress is able to enact new laws impacting immigration, changes could include a number of shifts that President-elect Trump has signaled during the prior Trump Administration and the 2024 election cycle, including:

Implementation of a Point-Based Immigration System. Such a system could include consideration of extraordinary talent, specialized vocation, advanced degrees, job creation, and wages.

Elimination of Certain Family-Based Visa Categories. Changes could leave limited pathways for family-based immigration, potentially including only the spouses and minor children of U.S. Citizens and Lawful Permanent Residents (LPRs / Green Card Holders).

The impact of the new Trump Administration on U.S. immigration including “skilled” worker immigration will likely be significant and occur early in the new Administration. Parker Gallini LLP will continue to keep our clients up to date on these changes as they occur.