Former President Donald Trump’s election to a second term in the White House is sure to reshape immigration law and enforcement. What should employers expect, and how can they prepare? Below are a few highlights:

Expansion of “Buy American, Hire American” Policies

A second term is certain to see such policies reinforced, leading to stricter requirements for employers seeking to hire foreign nationals. These policies place pressure on companies to demonstrate that their hiring practices do not undermine job opportunities for U.S. citizens. Practically speaking, we can expect more aggressive investigations and audits by the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) into wage levels, job descriptions, and recruitment efforts.

Stricter Limits on Visa-Sponsored Petitions

A second Trump term is likely to reduce the ability of employers to obtain work-sponsored visas for their foreign workers. The H-1B program in particular will feel the effects of new laws and regulations designed to limit H-1B eligibility and availability. Employers can expect policy changes to affect other employer-sponsored visa categories, including L-1 intracompany transfers, TN and E-3 professionals, and many others.

Limitations on Work Authorization for Students and Others

A second Trump term is likely to see efforts to roll back regulatory authorization of employment authorization categories not explicitly granted by the Immigration and Nationality Act. Policy proposals being considered include the elimination of Optional Practical Training for F-1 students, work authorization for certain H-4 spouses, and humanitarian programs such as Unite for Ukraine, Temporary Protected Status, and Deferred Action for Childhood Arrivals.

Increased Scrutiny of Consular Visa Processing and Border Entries

Companies should be prepared for potential disruptions in travel to the United States, including potential travel bans that could restrict the entry of certain foreign nationals. Increased scrutiny at consular visa interviews and during the entry process also is likely to pose challenges to business travel, cross-border hiring, and foreign nationals already employed in the United States who need to travel abroad for business or pleasure.

Effects on Investment Visas

During the prior Trump Administration, the EB-5 program remained largely unaffected by his immigration policies, but processing times were significantly longer. While a second Trump administration’s potential reduction of tax liabilities for high-net-worth individuals could attract more EB-5 investors, processing delays at USCIS and the Department of State could put off potential investors. EB-5 investors, like other immigrant visa applicants, may also face additional scrutiny at consular interviews.

Increased Immigration Enforcement and Workplace Compliance

Following similar actions in Trump’s first term, employers can expect continued increases in workplace audits and investigations, including greater scrutiny of Form I-9 compliance and increased enforcement against employers who have not met their obligations to verify work authorization of their employees.

Practical Steps Employers Can Take

  • Be thoughtful about communicating support for foreign national workers and the leadership that hires them. Be prepared for future effects on attracting, hiring, and retaining foreign national workers.
  • Determine the support needed for your sponsored workforce (including those on “non-sponsored” work permits). Identify and review your sponsored population to understand where new policies may cause disruptions, including those affected by potential travel bans.
  • Review your workforce data to identify employees who may be affected by future rollbacks of work authorization and decide whether and how your company will support those employees.
  • Audit your current compliance programs. Auditing Form I-9 files and Public Access Files now will relieve the company in the event of future government audits and investigations.
  • Review your hiring policies. Ensure that your recruitment and onboarding materials are consistent and do not expose the company to allegations of preferential treatment in the hiring process.

The Alliance of Business Immigration Lawyers recommends that businesses consult with experienced immigration counsel to assess their current workforce and ensure compliance with current immigration regulations.