New Administration Outlook: What Employers Need To Know About Trump's Immigration Actions
A flurry of immigration-related post-inauguration Executive Orders and other planned changes to immigration law under President Trump will alter the U.S. immigration landscape, with stepped-up enforcement actions, an aim to end birthright citizenship, and restrictions on travel to the United States. However, options remain for U.S. employers to hire and sponsor noncitizens.
Workplace Raids
President Trump and the "border czar" Tom Homan are planning enforcement actions, including raids of businesses where unauthorized noncitizens are suspected to work, to fulfill a pledge to launch a campaign of "mass deportations." An Executive Order, "Securing Our Borders," instructs U.S. Immigration and Customs Enforcement (ICE) and other law enforcement officials to prioritize apprehending noncitizens with criminal charges and also on suspicion of violating federal or state law.
A Homeland Security official rescinded guidance protecting "sensitive areas" from immigration raids, including churches, schools, and hospitals. The hands-off approach had been in effect for more than a decade to protect vital services provided in those locations. Reports indicate that businesses in New York, Los Angeles, Denver, and Miami, among others, could face action in the near term.
What employers need to know
- ICE officers who present a warrant signed by a judge may enter the public premises specifically for the purposes listed on the warrant or in connection with specific individuals listed. Judicial warrants generally do not give ICE free rein for broad actions.
- Homeland Security Investigations (HSI) can conduct paperwork audits, often accompanied by subpoenas, requiring employers to produce I-9 forms and additional records within three days. These can occur even when there are no suspected unauthorized workers.
- Employers should conduct internal I-9 audits and other immigration case reviews to ensure paperwork is in order.
- Employers also may want to recommend that employees carry a copy of evidence of their right to be in the United States, on paper or as an image on their phones, in case of questioning by immigration authorities.
- Hospital employers, schools, and churches may want to provide assurance that they protect confidentiality and not offer information or access that is not required by law.
America First Priorities
The Executive Order titled "America First Priorities" focuses on trade. But it indicates that companies outside the United States should be welcome to set up U.S. entities and hire noncitizens.
What employers need to know
- Immigration categories, such as E-2 investor visas and L-1 intracompany transfers from parent or subsidiary organizations outside the United States continue to provide viable options to employ noncitizens who are key executives, managers, essential personnel, or have specialized knowledge from outside the United States.
- The initial round of Executive Orders did not specifically target other commonly used work visa classifications, including H-1B specialty occupation professionals; J-1 exchange visitors; O-1 individuals with extraordinary ability; P-1 performers; and TN professionals from Canada and Mexico, though evolving agency conditions could affect processing of immigration cases for such individuals.
- The "America First Trade Policy" Executive Order requires a review of the impact of the U.S.-Mexico-Canada Agreement (USMCA) on American workers, which could result in future changes and increased scrutiny of TN visas. Employees and employers should consider renewing the TN at the earliest opportunity before any such changes can take place.
- When preparing immigration cases, employers should communicate the rationale or benefit to the United States behind their hiring of noncitizens. The America First Trade Policy Executive Order specifically mentions favoring investment that will benefit American workers in several areas:
- Manufacturers;
- Farmers and ranchers;
- Entrepreneurs;
- Businesses; and
- Technology advancement.
- Green card sponsorship for employees and family members do not appear to be targeted by the initial round.
Travel to the United States
Travel bans with suspension of admission of noncitizens from some to-be-identified countries are expected by late March, according to the Executive Order titled "Protecting The United States From Foreign Terrorists And Other National Security And Public Safety Threats."
In addition, employers should expect a return to "extreme vetting" for visa applications at embassies and consulates outside the United States.
Among his other actions, President Trump also shut down the CBP One app for scheduling asylum-seekers outside the United States, temporarily suspended refugee resettlement, and revived a program requiring asylum-seekers to wait in Mexico for their immigration hearings.
What employers need to know
- Employers should encourage employees to carefully plan travel outside the United States and to avoid unnecessary travel.
- For existing employees, it often is possible to renew employment authorization and immigration status within the United States, without traveling abroad for visa renewal.
- Employers with individual employees traveling abroad for visa renewal should not expect predictability on the return date, as there may be delays due to changes in visa processing and vetting criteria.
Attempt to End Birthright Citizenship
President Trump attempted to end birthright citizenship, guaranteed under U.S. Constitution, by Executive Order titled "Protecting the Meaning and Value of American Citizenship." Under the Fourteenth Amendment, anyone "born or naturalized in the United States, and subject to the jurisdiction thereof," is a U.S. citizen. It would become effective 30 days after Inauguration Day, that is, for all births in the United States on February 20, 2025, and thereafter.
The Executive Order directs that a child born in the United States is not a U.S. citizen if either:
- Mother is unlawfully present in the U.S. and father is not a U.S. citizen or lawful Permanent Resident;
Or
- Mother is in a temporary status in the U.S. (e.g., student, work, or tourist visa) and father is not a U.S. citizen or Lawful Permanent Resident.
What employers need to know
- State Department restrictions already prevent issuance of visas for "birth tourism," that is, where pregnant women want to come to the United States for the purpose of giving birth.
- If this ban were implemented, birth certificates, issued by state, county, and local authorities likely would become useless for many purposes, such as:
- Social Security applications;
- Passport applications;
- Membership in the military;
- Healthcare, education, and other benefits reserved for U.S. citizens.
- Implementation likely would necessitate changes to the birth certificate issuance process, and it could require submitting birth certificate information to a federal agency for processing.
- The Executive Order would apply where parents are present on a tourist, work, or student visa, according to the order, which instructs federal agencies to stop issuing citizenship documents to such individuals.
- Federal court suits already have been filed by at least 18 states and other entities, challenging the Executive Order to end birthright citizenship, and one federal temporary restraining order already has stayed the implementation.
- Assuming that the Executive Order becomes effective, employers might want to recommend that employees review their family's paperwork and proof of citizenship or immigration status.
During the first Trump Administration, there were over 1,000 revisions to immigration law, regulation, and policy. We will continue to monitor the changes, to help our clients navigate the process.