As employers of foreign national talent prepare for the return of President-elect Donald Trump to the White House in 2025, understanding the key immigration takeaways from his first presidency is more important than ever. With the U.S. unemployment rate at a steady low of 4.1% in October 2024 and approximately 0.9 unemployed individuals per job opening, the demand for skilled foreign workers remains high, especially in STEM fields. However, during Donald Trump's initial term, heightened scrutiny on H-1B visas and increased compliance enforcement posed significant challenges for businesses relying on this talent pool. If similar policies return, employers can expect stricter visa requirements, longer processing times and intensified audits. Revisiting the key immigration changes from Donald Trump’s first term can help employers develop strategies to effectively navigate potential challenges ahead of his second term in office, ensuring they are prepared to attract and retain critical foreign talent amid shifting regulations.
- Intense Scrutiny on H-1B Visas
During Donald Trump’s first term, employers experienced significant challenges obtaining H-1B visas, the primary visa for skilled foreign workers in industries like technology, engineering and health care. The “Buy American, Hire American” (BAHA) executive order, issued in 2017, led to a dramatic increase in Requests for Evidence (RFEs) for H-1B applications. U.S. Citizenship and Immigration Services (USCIS) scrutinized job descriptions, wage levels and employer-employee relationships, causing processing delays and higher denial rates. Companies employing H-1B holders often had to provide additional documentation to prove job requirements, leading to added legal costs and delayed hiring timelines. - Emphasis on “Buy American, Hire American” (BAHA) Principles
The BAHA order was a defining element of Donald Trump’s immigration policy. It directed federal agencies to favor U.S. workers and discouraged reliance on foreign labor. BAHA’s implementation went beyond H-1B scrutiny; it also affected other work visa categories, including L-1 intracompany transferee visas and J-1 exchange visitor visas. These policies forced many companies to reassess their utilization of international talent and adapt to a more complex and uncertain hiring environment. - Increased Workplace Compliance and Enforcement
The Trump administration ramped up I-9 audits and workplace inspections, often resulting in hefty fines for employers found violating immigration laws. U.S. Immigration and Customs Enforcement’s (ICE) worksite enforcement actions, including I-9 compliance audits, emphasized employer accountability and placed a heavier burden on companies to ensure their documentation and hiring practices were in strict compliance with immigration regulations. For employers with large workforces, especially those relying on temporary or contract labor, this period marked an increased focus on due diligence in maintaining employment eligibility records. - Visa Restrictions Through Travel Bans
The Trump administration implemented several travel bans, targeting nationals of specific countries. This approach complicated business travel and the movement of talent for multinational companies. Countries such as Iraq, Iran, Libya, Syria and Yemen were impacted, affecting visa issuance for nationals from those regions. Employers with employees from restricted countries faced disruptions in hiring, travel and retention as foreign employees could face delays or denials in visa renewals and re-entry to the U.S. Donald Trump announced in September that he plans to bring back these travel bans. - Public Charge Rule’s Implications for Skilled Workers
Traditionally, the public charge rule prevented immigrants likely to depend primarily on government aid from obtaining green cards. Under Donald Trump, however, this rule was expanded to apply to certain work-based immigration cases, leading to increased scrutiny of foreign nationals who might access public benefits. Although primarily aimed at family-based immigration, this policy created challenges for some skilled workers and their families, complicating their path to permanent residency.
What to Expect in 2025
When Donald Trump returns to office, we can anticipate a return to many of these policies, perhaps with even stricter enforcement measures. Potential new regulations could impact employment-based immigration in unforeseen ways.
Employers might see:
- Stricter H-1B guidelines, possibly through wage-level adjustments or restrictions on certain occupational categories.
- Increased workplace audits and penalties for I-9 non-compliance, further emphasizing immigration-related labor law adherence.
- Potential delays and reduced visa quotas for specific visa categories, including possible new barriers for dependent visas or work authorization extensions.
- Renewed or additional travel restrictions targeting different regions or expanding on previous bans.
How Employers Can Prepare Now
Employers should take proactive steps now to fortify their ability to attract and retain foreign talent while ensuring compliance with immigration laws. Here are some strategies to help companies navigate anticipated changes and overcome possible obstacles like requests for evidence (RFEs):
- Review Foreign National Employee Population and Plan for Upcoming Transfers
Employers should conduct a thorough review of their current foreign national employee population and assess any planned transfers of employees to the U.S. in the coming months. For employees anticipated to need new visas or transfers in 2025, initiating these applications now could help avoid the potential delays, stricter scrutiny and added requirements that may arise under a Trump administration. Additionally, employers should encourage current employees to renew their visas as early as possible. - Prepare for Worksite Compliance Reviews
Conduct regular internal reviews of compliance processes, such as I-9 verification and tracking of visa status expiration dates. Implement or update protocols to ensure all records are maintained accurately and consistently, as this will prepare employers for any potential site visits or audits. Ensuring up-to-date employment documentation and consistent processes for worksite management can help preemptively address areas of potential scrutiny. - Strengthen Visa Applications with Comprehensive Documentation and Legal Support
To prepare for potential RFEs and ensure a smooth visa application process, employers should submit robust, well-documented petitions that clearly demonstrate the need for foreign national talent. This includes detailed job descriptions, specific project details, organizational charts and any supporting evidence of the specialized nature of the work. Engaging experienced immigration counsel early can also be invaluable; attorneys who are well-versed in navigating strict visa adjudication standards can help ensure applications address common scrutiny points. For roles involving third-party work locations, thoroughly documenting the employer-employee relationship is essential to show the company’s control over duties, work location and supervision. Proactively addressing these elements can significantly reduce the likelihood of RFEs, delays and denials. - Encourage Early Filing of Extensions and Amendments
With the potential for longer processing times and heightened scrutiny, consider filing visa extensions, amendments and renewals well in advance of expiration dates. Early filing allows employers time to respond to RFEs or any additional document requests without risking work authorization lapses. Early action can also provide peace of mind for both employees and employers. - Encourage Non-U.S. Employees to Plan International Travel Well in Advance
Increased scrutiny and longer processing times could make it harder for non-U.S. employees to obtain visas and travel internationally. HR departments should encourage their workforces to plan international travel, whether for business or pleasure, well in advance. Where possible, employees should notify their HR departments of planned international travel to help ensure that necessary travel documentation is secured in a timely fashion.
By proactively reinforcing compliance processes and strengthening documentation practices, employers can mitigate potential challenges and better position themselves to continue employing foreign national talent in a potentially restrictive immigration environment.
For questions or concerns regarding the upcoming Trump administration’s impact on foreign national talent or your company’s immigration practices, please contact Sarah Bileti, Daniel Persinger, Christopher LeClair or your Warner attorney.
