Immigration Hurdles Ahead for Employers

Employers watched with keen interest during President Donald Trump’s first week of his second term as a flurry of executive orders are sure to have repercussions across all industries.

“On January 20, 2025, following his inauguration, President Trump signed off on several dozen executive orders and executive actions. While none of them center on business immigration, several are likely to have direct implications for employers and their employees,” said D.C. law firm Morgan Lewis.

Morgan Lewis partner Eric S. Bord wrote that while there are still many unknowns on how these executive orders will affect employers in the United States, there are many clues from Trump’s first administration and how it handled similar policies.

Employers should keep a close eye on the following executive orders:

• Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats.
• Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists.
• Protecting the Meaning and Value of American Citizenship.
• Realigning the United States Refugee Admissions Program.

Executive Order Calls for Enhanced Immigration Vetting and Screening

Trump’s executive order on Terrorists may create the most work for employers moving forward.

“This order instructs relevant agencies to ‘vet and screen to the maximum degree possible’ all noncitizens who intend to be admitted or are already inside the United States, with a focus on individuals from regions or nations with an identified security risk. This order largely mirrors a series of proclamations and orders issued during the first Trump administration,” explains Bord. “It remains to be seen how the language in this order will be interpreted and applied; however, in the first Trump administration, the nearly identical policy was used to impose additional documentary and evidentiary requirements for consular visa applications and requests for immigration benefits filed with U.S. Citizenship and Immigration Services (USCIS), including H-1B, L-1, TN, and other nonimmigrant petitions and adjustment of status applications.”

The order specifically says that the Secretary of State, in coordination with the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence, shall promptly:

• Identify all resources that may be used to ensure that all aliens seeking admission to the United States, or who are already in the United States, are vetted and screened to the maximum degree possible.
• Determine the information needed from any country to adjudicate any visa, admission, or other benefit under the Immigration and Nationality Act (INA) for one of its nationals, and to ascertain whether the individual seeking the benefit is who the individual claims to be and that the individual is not a security or public-safety threat.
• Re-establish a uniform baseline for screening and vetting standards and procedures, consistent with the uniform baseline that existed on January 19, 2021, that will be used for any alien seeking a visa or immigration benefit of any kind.
• Vet and screen to the maximum degree possible all aliens who intend to be admitted, enter, or are already inside the United States, particularly those aliens coming from regions or nations with identified security risks.

“Employers and their employees often found it challenging to satisfy the new standards and to respond successfully to requests for additional information,” wrote Bord.

Morgan Lewis says some potential consequences of this executive order are:

• Consular appointments may become mandatory for all visa applicants, resulting in difficulty and delay in processing visa applications.
• The U.S. Citizenship and Immigration Services (USCIS) may require additional evidence, especially for H-1B and L-1 nonimmigrant petitions, and there may be a more restrictive application of immigration laws and regulations than during the Biden administration.
• Impact to the employee-based green card processing which in the first Trump administration resulted in a number of family-based immigrant visas going unused.

Employers should expect that USCIS officials will forfeit the ability to waive some in-person interviews with every employment-based adjustment applicant undergoing an in-person USCIS interview. In the first Trump administration this led to significant delays in processing and final adjudication of green card applications.

“The enhanced vetting and screening policies and procedures in the first Trump administration manifested in additional documentary and evidentiary requirements, increased frequency of background checks, consular delays, and greater restrictiveness and uncertainty in the adjudication of requests for an immigration benefit,” concluded Morgan Lewis. “Employers and their employees should consider the possibility that this dynamic will repeat.”

Other Executive Orders Could Also Affect Employers

Here’s a quick look at how the other executive orders could affect employers:

• Cartels Executive Order: This executive order says that Trump could invoke the Alien Enemies Act of 1798 to target and remove migrant criminal networks operating in the U.S. Morgan Lewis says such a declaration could give the president power to “unilaterally order or permit the arrest, imprisonment, or removal of any citizen of a country  that the president declares to be an ‘enemy nation’ or a nation that has invaded the United States without trial or hearing.” NPR reports that the Alien Enemies Act has been used three times in U.S. history: during the War of 1812, during World War I, and during World War II.
• American Citizenship Executive Order: Under this executive order, American citizenship would not be granted to those persons whose mother was unlawfully present in the United States and the father was not a U.S. citizen, and to those persons whose mother was in the U.S. at the time lawfully but temporary such as when visiting the U.S. under the Visa Waiver Program or visiting on a student, work or tourist visa, and the father was not a U.S. citizen or lawful permanent resident at the time of the birth.

Says Morgan Lewis: “The order applies to children born in the United States to parents who are lawfully in the United States pursuant to work or dependent visas—for example, the U.S.-born child of two parents, one of whom is in H-1B status and the other who is H-4 status. A child born in the United States who is not deemed to be a citizen will be ineligible to receive a U.S. passport, Social Security Number, federal benefits, and other indicia of citizenship. Employers may wish to prepare for the possibility that foreign national employees on work visas will find this situation untenable, leave their employment, and depart the United States.”

• Refugee Admissions Executive Order: This executive order suspends on Jan 27, 2025, entry into the U.S. of refugees under the U.S. Refugee Admissions Program. Those with refugee status had been granted work authorization.
  

Morgan Lewis says that some businesses, “particularly in industries such as food processing, logistics, and agriculture, that rely on refuges to fill vacancies may face challenges in doing so going forward.”

Employers Can Expect Tougher Adjudications, Travel Restrictions and Increased Worksite Investigations

The National Law Review reported in December 2024 that in this second Trump administration, employers can expect the following:

• Tougher Adjudications: Employers saw an increase in denial of immigration benefits in the first Trump term such as H-1B, L-1 and O-1 work visa petitions. Be prepared to provide additional documentation and longer processing times.
• Travel Restrictions: Employers should monitor international business travel, especially for those whose immigration status may hinder their ability to return to the U.S. after leaving.
• Enhanced Screening: Expect increased processing times for consular visa applications and an increase in visa denials.
• Increased Worksite Investigations: Expect I-9 compliance audits and even potential workplace raids. Employers may see an increased number of USCIS, DOJ/IER, and DOL investigations and audits related to employment of non-immigrant and immigrant employees.
• H-1B Program Changes: Watch for higher prevailing wage requirements which could make some hiring and continuing employment prohibited for some employers.
• Termination of Humanitarian and Individual Work Authorization Programs: Those employed under TPS, DACA, H-4 Spouse EADs and other humanitarian and individual work authorizations programs may find their ability to be employed terminated.

I-9 Employment Eligibility Verification Form in the Spotlight

The I-9 employment eligibility verification form will take a renewed importance in Trump’s second term with employers advised to evaluate their onboarding programs and I-9 compliance through training and internal audits.

“HR and compliance teams seeking to get ahead of changing policies under a second Trump Administration should start by looking at the all-important Form I-9 verification process. If history provides any clues, employers can expect increased enforcement, changes in work authorization policies and a potential expansion of the E-Verify program,”says Corporate Compliance Insights.

Reviewing both I-9s and E-Verify cases can help identify errors before an I-9 inspection, E-Verify desk review or state-initiated audit, says Corporate Compliance Insights. Assessments should examine records to look for:

• Completeness: Ensure all forms are fully completed.
• Accuracy: Verify all information is correct and consistent with supporting documentation.
• Timeliness: Verify that documentation was completed within the required timeframe.
• Non-discrimination: Look for cases of “over-documentation” or unfair documentary practices.
• Retention: Ensure that forms are properly stored and retained for the required period.
• Electronic I-9 compliance: Make sure electronic records conform to DHS recordkeeping and safeguarding rules.

“The I-9 form, a seemingly simple document, sits at the heart of a complex and ever-changing landscape. As employers navigate evolving regulations, technological advancements and shifting political priorities, the importance of proactive I-9 compliance cannot be overstated,” concluded the publication.

Should Employers Prepare for ICE Raids?

NBC News reported that the Department of Homeland Security on President Trump’s second day of his second term said that the U.S. was ending the policy that restricted Immigration and Customs Enforcement agents’ ability to arrest undocumented people at or near so-called sensitive locations, including houses of worship, schools, and hospitals.

The National Law Review on Jan. 24, 2025, reported on President Trump’s promise to enact a mass deportation operation of undocumented immigrants in the U.S. and initiating “the largest domestic deportation operation in American history.”

“As part of this operation, there is speculation that the U.S. Immigration and Customs Enforcement (ICE) agency, the enforcement branch of the U.S. Department of Homeland Security (DHS), is preparing to take removal actions (informally known as ‘ICE raids’) in targeted cities,” said the National Law Review.

ICE raids are unannounced, but agents must have a signed warrant or the employer’s consent to search non-public business premises for undocumented employees working for U.S. employers.

The National Law Review says businesses that expect the possibility of ICE raids can do the following to prepare:

• Designate an HR or legal department person to be the primary point of contact in case of an ICE raid.
• Prepare guidelines for those first point of contact in a raid such as the front desk receptionist so they know what to do when confronted with ICE agents.
• Conduct internal I-9 and E-Verify audits to ensure compliance.
• Conduct an internal audit to make sure immigration petition documents are in line with personnel records.
• Conduct review of employee personnel, I-9 and immigration files to ensure they are kept in separate folders and contain only relevant documents.
• If you have temporary staffing agency workers or contractors, review your vendor contract for language regarding compliance with I-9 laws and legality of the contractors to be employed in the U.S.
• Notify managers and supervisors that they must not provide legal advice to employees or customers who are at the business when a raid occurs.
• Have statements prepared to be released to the media in advance of ICE raids.

“Employers that serve members of the public, such as hospitals, schools, and religious organizations, should also be aware that they are generally under no obligation to share the immigration status (if known) of their patients, parishioners, customers, or students unless such information is specifically included in a government agent’s lawful warrant. Relatedly, however, employers should be careful not to be seen as obstructing or interfering in any way with the government’s actions,” advised the National Law Review.

PRT Staffing will continue to work closely with all our clients to ensure that our skilled temporary workers are fully compliant with U.S. immigration employment requirements.