Now that the 2024 U.S. presidential election has been decided, there is understandably a great deal of focus on the impact the election will have on U.S. immigration law and policy. Not only was immigration a frequent topic of president-elect Trump during his campaign, but it was also a focus of his last administration and has since been discussed regularly by those who are likely to have influential roles in the next administration. Taken together, we can make educated guesses as to some of the “big picture” changes that may be in store, though we will need to wait for the details like timing and the specific policy changes. 

Border Security and Undocumented Foreign Nationals 

Trump’s primary immigration-related campaign topic was the security of the southern U.S. border and those attempting to cross it without prior approval, as well as the removal of undocumented foreign nationals who are already in the United States. Given this campaign focus, these issues may be the new administration’s principal focus, at least initially. 

Some of Trump’s stated goals may be more easily achievable than others. For example, a continuation of the Biden administration’s policy of barring migrants from seeking asylum when the number of border crossings crosses a certain threshold could be continued. Trump could also continue the Biden (and Obama) administrations’ prioritization of the removal of undocumented individuals who have criminal histories or who were previously deported or removed from the United States.  If Trump seeks to remove all undocumented foreign nationals, then with that comes a host of issues including the politically-difficult optics of possible family separation, logistical difficulties, and the need to increase funding for the expense of such efforts, likely to reach into the billions of dollars.  Implementing deportation/removal will require increased Congressional funding, which Congress failed to provide when it twice voted down this past year a bipartisan immigration bill which would have provided significant enforcement and funding.  

Immigrant Visas 

 Some of Trump’s most influential advisers favor reductions in almost every form of legal immigration to the United States, including immigrant visa (i.e., U.S. permanent residence) categories that have been in place for nearly six decades. Family-based categories have been a particular focus as Trump and his advisers deride these categories for allowing for “chain migration” across generations. 

 Also, Trump may direct U.S. Citizenship & Immigration Services (USCIS) to slow down processing or even “pause” receiving applications for some categories with large backlogs. The administration could also slow down all employment-based processes as it did in 2017-2021 through measures such as requiring interviews for every process. More fundamental changes to the immigrant visa categories would likely require Congressional assistance. 

Nonimmigrant Visas 

In keeping with an overall goal of reducing immigration across the board, the Trump administration is likely to impose stricter limits on several nonimmigrant categories. During the last Trump administration, USCIS imposed stricter interpretations on a variety of definitions and concepts in the nonimmigrant categories, evidenced by much higher denial rates and issuances of Requests for Evidence (RFEs). Similar efforts can be expected in the upcoming Trump administration.  

 Worksite Enforcement 

 In addition to additional restrictions, the new Trump administration will likely direct an increase in Immigration and Customs Enforcement’s (ICE’s) worksite enforcement actions, imposing more audits on employers’ Forms I-9 and performing “round ups” of unauthorized employees at worksites around the country. These efforts will likely dovetail with its overall objective of removing undocumented foreign nationals from the United States.  

 What Employers Can Do 

 While the specifics and timing of the new Trump administration’s immigration-related actions remains to be seen, the likelihood of significant change is high. As such, employers should be prepared for these changes and potential impacts on their foreign national workforces. Working with their immigration counsel, employers should have a comprehensive understanding of the current status and overall strategy of all of their foreign national employees so that practical impacts can be determined as soon as new policies and actions are announced.  

 Working with your Foster attorneys will be critical to help minimize disruptions  and potential liability for immigration-related infractions. To learn more about this topic, you can attend Foster’s webinar on Immigration Forecast: What May Be Coming, on November 13, Wednesday, at 1:00 PM CST with Foster LLP’s Chairman Charles Foster and Partner Avalyn Langemeier. To register if you have not already done so, go to our website at www.fosterglobal.com and click on the link at the top for Upcoming Webinar.