Anticipating and Preparing for a Second Trump Administration’s Challenges to Employment Immigration

The prospect of a second Trump administration raises significant questions about the future of immigration policy. Trump’s first term saw notable shifts, including travel bans, visa challenges, and procedural and substantive restrictions for many visa types.  These measures caused significant challenges and anxiety among many visa holders and applicants.

In this article, we will explore the potential directions a second Trump administration could take regarding immigration with focus on employment-based immigration.  We aim to provide an overview of possible changes and challenges and to hopefully allow impacted employers and individuals to prepare in advance.

H-1B Workers

Overall, we anticipate higher level of scrutiny on H-1B petitions across the board which will, eventually, result in higher RFE and denial levels.

Specialty Occupation and Third-Party Worksites

The government may become more strict in evaluating the specialty occupation of the H-1B position and require more specific and clear justification of the specific field of study that is normally required for the position (see our alert).  Petitions for third-party worksites are likely to be required to provide more extensive documentation of the relationship between the employer and the H-1B worker, including contracts, statements of work/purchase orders, etc. for the entire requested H-1B term.   It is possible that the government may start issuing shorter H-1B approvals if the end client placement is not documented by contracts/SOW/POS for the entire requested term.  Similarly, USCIS may start cracking down more aggressively on cases where an amendment was required but not timely filed (see our alert).

Salary Wage Levels/Wage Level 1

USCIS may start looking more closely at the position description (and requirements) and whether an H-1B petition has properly categorized the wage level.  We had seen extensive scrutiny on petitions for positions that are marked as Wage Level I but are for a position that seems to be more than an entry-level job (see our alert).  Also, in 2020, the prior Trump administration had tried to substantially increase the wage levels across the board.  While this effort failed in 2020/2021, a similar effort is possible.

H-4 EAD, H-4 Bundled Processing and H-4 EAD Auto-Extensions

The prior Trump administration had attempted to rescind the H-4 EAD work permit program altogether but was not ultimately able to do so.  A new Trump administration may try to do so again via rulemaking process.  This process is likely to take months and, thus, likely provide ample notice, but this is a factor when considering whether to rely on H-4 EAD on a long-term basis (see our alert on H-1B vs. H-4 EAD).

Currently, USCIS allows “bundling” of H-1B, H-4 and H-4 EAD applications and when this is done and assuming the H-4 and H-4 EAD applications are properly documented, USCIS normally reviews and approves all three applications at the same time.   This is especially valuable when the H-1B is filed with premium processing – this essentially allows premium processing on the H-4 EAD which is not possible for a standalone H-4 EAD application.  This practice of bundling may end under a new Trump administration.   This may also be complicated (and cause additional delays) if they decide to reinstate the biometrics requirement for change/extension of status applications.

USCIS may also decide to limit (or stop) the availability of continued work authorization based on expiring EAD (see our alert) when there is a timely-filed extension pending.  If this happens, and if the “bundling” is removed, this will make the H-4 EAD program highly undesirable due to the likely gaps in employment authorization during renewal periods.

Visa Interview Waiver (Dropbox) for Visa Applications and Longer Visa Wait Times

New Trump administration may decide to limit (or eliminate) the availability of the visa interview waiver (also known as “dropbox”) for many H-1B visa applicants.   This will result in a much less predictable and significantly longer visa renewal process.  The Department of State may also limit the availability of visa interviews for third-country nationals (TCNs) at third-country US Consulates.   All of this will increase the backlogs and result in long visa wait times.

What Can I Do to Lower My Risks?

We recommend being proactive and filing H-1B petitions under the current rules.  Same for H-4 EADs.  We recommend evaluating H-1B and H-4/EAD expiration dates and petition terms to understand timelines and risks for renewals.  H-1B extensions, for example, can be filed six months prior to expiration; however, if a petition is to be amended (for a number of reason), an H-1B amendment petition can be filed with a request to extend.  When possible, file (and bundle) H-1B petitions with H-4 and, if available, H-4 EAD applications.  Either use premium processing or be ready to upgrade to premium processing if needed.  Obtain H-1B visa stamps earlier.  Evaluate if there are H-4 EAD alternatives (and prepare to pursue them) in case the H-4 EAD program is suspended.

L-1 Workers

The L-1 program is also likely to see higher scrutiny, and especially the L-1B classification.

L-1B Specialized Knowledge

During the first Trump administration we saw very high rate of RFE and denials for L-1B petitions and often the reason was that USCIS did not find that the position met the definition of specialized knowledge.  While the outlook of L-1Bs has improved significantly over the past few years, a possible angle of attack on the L-1B program may be the specialized knowledge factor.  It is important to be ready to prepare very specific and well laid out justifications of the nature of the position.

L-2S Work Authorization and Auto-Extensions

The L-2S automatic work authorization rule may be rescinded which will then require L-2 spouses to file for a separate work authorization (like H-4 EAD have to do now).   This will also put in danger the auto-extension work authorization for L-2 spouses.

Visa Interview Waiver (Dropbox) for Visa Applications and Longer Visa Wait Times

Similar to the H-1B visa, we expect that a new Trump administration may decide to limit the availability of the visa interview waiver and this will result in a much less predicable and significantly longer visa renewal process.  The Department of State may also limit the availability of visa interviews for third-country nationals (TCNs) at third-country US Consulates.   All of this will increase the backlogs and result in long visa wait times.

What Can I Do to Lower My Risks?

We recommend being proactive and filing L-1 (especially L-1B) petitions under the current rules and procedures.  File L-1s early and use (or be ready to upgrade) premium processing.   Obtain L-1 visa stamps earlier.

F-1 Students

USCIS may become more aggressive towards CPT students, certain work authorization rules  and unlawful presence.

Curriculum Practical Training (CPT) Students, “Day-1” CPTs and Compliance

During the 2018-2020 period, USCIS used to take very aggressive stance against F-1 CPT users and especially those who would enroll in a degree program and immediately take CPT work authorization (so-called “Day 1” CPT) (see our alert).  There is nothing inherently wrong with CPT as long as all of the compliance steps have been taken, including having proper documentation of the training, taking the correct courses and attending school in person as required by the F-1 regulations.   Most of the prior scrutiny was found to be unwarranted but the F-1 CPT program still retains some stigma.   It is possible that USCIS may again start scrutinizing F-1 CPT students and require extensive documentation that they are in compliance.

STEM OPTs

After it survived a number of court challenges, we do not anticipate major changes to the STEM OPT program; however, there may be subtle policy changes.  For example, USCIS may start questioning more STEM OPT application where there is a mismatch between the CIP code on the I-20 and the major on the degree (see our alert).  USCIS may also limit the auto-extension period for work authorization based on a timely-filed and pending STEM OPT.

It is possible that certain restrictions may be reimposed on STEM OPTs – for example, working at third-party worksites (see our alert).

Unlawful Presence Immediately Upon Violation of Status

The first Trump administration sought to implement a rule which would immediately make an F-1 student unlawfully present (see our explanation on unlawful presence) upon violation of status.   This rule was blocked in 2019 by court (see our alert) but it is possible that a new Trump administration may try again.

Green Card Applicants

Fewer I-485 Interview Waivers = Longer Processing Times

Over the past 2-3 years, USCIS has been steadily working through their processing backlogs for I-485 applications and one of the ways they have  been able to do so is to waive interviews for an increasing number of cases.   While interviews for marriage-based I-485 applications are still common, USCIS has largely waived the interviews for most other I-485 applications, including employment-based cases.   It is possible that the trend may reverse with more I-485 interviews for wider range of cases required in the future.

Public Charge Criteria

The public charge ground of inadmissibility has changed and evolved dramatically over the past few years. It is possible that a second Trump administration will take it up again and create more confusion by changing the rules to make it more challenging for prospective immigrants to show that they will not become a public charge (see the 2022 rule analysis).   A possible rule change may prohibit a wider selection of benefits (cash or non-cash) that will make a prospective immigrant ineligible.

Shorter EAD/AP Validity Terms

It is the current policy of USCIS to issue I-485-based EAD work permits and advance parole travel permits with 5-year validity term (see our alert).  This may come down to 1- or 2-year terms under a new Trump administration.   Applying for I-485 EAD/APs early under the current rules may be a good idea.

I-693 Medical Exam Validity Shortened

Likewise, it is possible for USCIS to limit the validity of a medical exam which is required for most I-485 applications.   Currently, medical exams signed after November 2023 do not expire.  USCIS may reinstate validity restrictions which will require applicants to submit new I-693 medical exams.

Lawful Permanent Residents (Green Card Holders) and US Citizens

While we do not anticipate major challenges to existing green card holders and US citizens, it is possible that there may be procedural and process challenges.   For example, if the public charge rule is expanded then green card holders of US citizens who are in the process of sponsoring a relative will need to provide additional documentation to meet such higher criteria.

There likely be longer processing times, especially if USCIS start requiring interviews for more I-485 cases for relatives of green card holders or citizens.

Visa Applicants/Visitors

Ban on Certain Visitors

While a widespread ban on travel to the US is not very likely, there may be selective restrictions imposed to nationals of certain countries.  This may mean bans on entry to the US or bans on applying for visas.

More Visa Interviews and Longer Processing Times

If DOS scales down (or eliminates) the visa interview (dropbox) program, most people will need to attend visa interviews and this will increase what are already visa stamp long processing times.   National security and public charge reviews will also add processing times.

Conclusion

These restrictions, as of the date of this alert, are just hypothetical and possible scenarios, and we do not know for sure if and which of them may be implemented by a possible second Trump administration.   But considering the fact that many applications and steps take significant time to prepare and submit, it is worth considering and acting early.

To prepare for a possible Trump administration we recommend employers evaluate their visa holders and consider filing applications early and proactively to avoid a more restrictive Trump administration environment.   For visa holders we recommend being proactive in securing visa stamps, extensions and taking proactive steps depending on the visa type.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.