On Jan. 23, 2025, in a suit filed in the U.S. District Court in Seattle by the attorneys-general of Washington State, Arizona, Illinois, and Oregon to overturn President Donald Trump’s executive order (EO) banning birthright citizenship, Judge John Coughenour enjoined enforcement of the EO, calling it “blatantly unconstitutional.” The judge issued a 14-day temporary restraining order.

Eighteen other states filed a similar lawsuit in Massachusetts federal court. That suit does not seek a preliminary injunction, however.

The EO directs federal agencies to refuse to recognize U.S. citizenship for children born in the United States to mothers in the country illegally, or who are present in the United States on non-immigrant visas, including work, student, and tourist visas, if the father is not a U.S. citizen or green card holder.

The EO seeks to overturn United States v. Wong Kim Ark, 169 U.S. 649 (1898), a U.S. Supreme Court case over a century old holding that children born in the United States to foreign parents are U.S. citizens under the 14th Amendment. Issuing an injunction, Judge Coughenour stated: “I have been on the bench for over four decades. I can’t remember another case whether the question presented was as clear.”

The Laken Riley Act is the first bill that will come to President Donald Trump’s desk for signature as the 47th President.

Passed with bipartisan support, the bill:

  • Mandates the detention and possible deportation of migrants who enter the country without authorization and are charged with, arrested for, or convicted of:
    • Theft-related crimes, including burglary, theft, larceny, and shoplifting
    • Assaulting a police officer
    • Crimes resulting in death or serious bodily injury, including drunk driving that results in death or serious bodily injury
  • Gives states the right to sue the federal government if an individual with uncertain legal status is paroled into the country and commits a crime against a state or an individual (causing physical or financial harm “in excess of $100”)

Three criticisms of the bill are:

  • Individuals (who may be innocent) can be detained and deported even if they have not been convicted of a crime
  • It does not include funding, but enactment will require a significant increase in U.S. Immigration and Customs Enforcement (ICE) capabilities for enforcement and detention facilities, including an estimated cost of $27 billion (up from $3.2 billion) in the first year
    • ICE estimates 110,000 people would be eligible for detention under the bill
    • ICE also believes it would need to expand detention beds to 151,500, up from 41,500
  • It focuses on lesser offenders, making it difficult for ICE to go after more egregious offenders

The Laken Riley bill is named after a Georgia nursing student who was killed by an undocumented immigrant who had previously been convicted of shoplifting. Although research indicates that immigrants commit fewer crimes than those born in the United States, Republicans maintained that if this bill had been in effect, Ms. Riley would not have been murdered.

As many expected, President Donald Trump has not only issued Executive Orders (EOs), but he has also rescinded many EOs issued by the Biden Administration concerning immigration, including the following: “The Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans” EO which particularly affects business immigration. This EO formed the basis of policy guidance that, for example, streamlined the naturalization process, led to a reduction in the number of visa denials and Requests for Evidence (RFEs) that had been issued during the first Trump Administration, and reinstated the USCIS policy of deferring to prior approvals. Immigration advocates have been predicting the loss of these benefits under the new Trump Administration. Employers should expect a return to the days of costly RFEs and slower adjudications.

Other Biden-era EOs regarding immigration that have been rescinded include:

  • EO 13993 – “Revision of Civil Immigration Enforcement Policies and Priorities.” This EO prioritized enforcement on the grounds of national security, border security, and public safety and required notification to state and local authorities of at-large enforcement actions. Based upon the new Trump EOs, enforcement in all areas of business immigration, including I-9s audits and workplace enforcements (colloquially referred to as ICE Raids), will be expanded.
  • EO 14010 – “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border.” This EO called for the United States to address the root causes of migration, expand asylum protection in other countries, create more paths for lawful migration to the United States, and strengthen U.S. asylum policies. The Trump Administration is closing the border and has already shut down the CBP One App for asylum applicants.
  • EO 14011 – “Establishment of Interagency Task Force on the Reunification of Families.” This EO ended the child separation policy and created a task force to facilitate reunification. According to reporting, there are still many children who have yet to be reunited with their families.
  • EO 14013 – “Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration.” This EO called for minimizing delays in resettlement, reunifying families, restoring and expanding USRAP, and protecting Afghans and Iraqi Special Immigrants. Since Jan. 20, 2025, Afghans have been prohibited from boarding flights to the United States.

Whether rescinding a Biden EO effectively resurrects a prior Trump EO is still an open question.

Jackson Lewis attorneys will continue to follow this issue and provide updates on the new policies as they are enacted.

Takeaways

  • USCIS issued updated policy guidance on 1/15/25 on how it will evaluate candidates for EB-2 immigrant visas seeking a National Interest Waiver (NIW).
  • USCIS will be more closely scrutinizing a candidate’s qualifications, profession, experience, and support letters.
  • These changes will make it more difficult to obtain NIWs in the future.

The U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance on Jan. 15, 2025, to clarify how it will evaluate candidates’ eligibility for second preference employment based (EB-2) immigrant visa with a request for a National Interest Waiver (NIW). This update undoubtedly signals that the NIW process will be much more heavily vetted.

Generally, an employer files an EB-2 petition using Form I-140 after receiving a PERM labor certification from the U.S. Department of Labor (DOL). When an employer files the labor application with DOL for certification, it must attest that it will not displace any U.S. workers by hiring the foreign national, that such hiring will not adversely affect the job opportunities and working conditions of similarly employed U.S. workers, and that there are no able, qualified, and available U.S. workers. USCIS can waive the labor certification requirement, however, when a petitioner can show that doing so is in the United States’ interest. Additionally, and critically, individuals seeking a NIW may do so without having an employer sponsor the petition.

The Jan. 15, 2025, guidance confirms that for advanced degree professionals seeking an NIW, USCIS will need confirmation that the occupation is a “profession” and, if applicable, whether the requisite five years of post-bachelor’s experience is in that specialty. For individuals who are seeking an NIW based on exceptional ability, USCIS will scrutinize each petition on a case-by-case basis to confirm the exceptional ability is directly related to the proposed endeavor.

USCIS’ update also clarifies that the government will be taking a much closer look at the NIW petition supporting evidence. For example, the agency has expanded the list of information it hopes to see in letters of support and business plans. Further, USCIS has clarified that broad assertions about an individual’s potential benefit to the economy will not be sufficient evidence. This is particularly true for entrepreneurs. An entire section in the guidance is dedicated to their applications.

The NIW had been viewed as an attractive alternative to the laborious and time-consuming PERM labor certification process. While still an appealing route, the USCIS update appears to have raised the standard for NIW approval. As we wait to see how the guidance will be implemented and applied by USCIS adjudicators, it will be crucial for petitioners and employers to consider the new update as they make NIW sponsorship decisions and work with counsel to prepare those cases.  

Jackson Lewis attorneys are available to assist in strategizing and filing petitions for highly skilled individuals.

Following his inauguration on Jan. 20, 2025, President Donald Trump signed several executive orders designed to advance his immigration agenda. The orders include:

  • Ending Birthright Citizenship
  • Enhanced Vetting
  • Creating “Homeland Security Task Forces”
  • Ending Birthright Citizenship

This order directs federal agencies to refuse to recognize U.S. citizenship for children born in the United States to mothers in the country illegally, or who are present in the United States on non-immigrant visas, if the father is not a U.S. citizen or green card holder.

The order will deny U.S. citizenship, including passports, to children born in the United States 30 days from Jan. 20, 2025, if at least one parent is not an American citizen or green card holder. It is not clear what status, if any, these children will be deemed to hold upon birth in the U.S.

Court challenges to the order are expected. The U.S. Supreme Court ruled more than a century ago that children born in the United States to foreign parents are U.S. citizens under the 14th Amendment. See United States v. Wong Kim Ark, 169 U.S. 649 (1898). The only legally recognized exception applies when both parents are diplomats with immunity from U.S. laws.

Two dozen states and cities have filed a lawsuit in the U.S. District Court for the District of Massachusetts challenging President Trump’s executive order regarding birthright citizenship. While the litigation is pending, employees on non-immigrant visas who are due to give birth more than 30 days from Jan. 20, 2025, should evaluate the eligibility of their children for non-immigrant visas.

  • Enhanced Vetting

President Trump has signed an order to “enhance vetting and screening of illegal aliens.” The order directs agencies to provide recommendations to the president for suspending entry of migrants from “countries of particular concern.”

During his first administration, President Trump banned travel from countries, including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for 90 days with certain exceptions. The bans were challenged in court, but they were ultimately upheld by the Supreme Court in Trump v. Hawaii, et al., 585 U.S. 667, 138 S. Ct. 2392 (2018).

It is not clear which countries may be the targets of travel bans under the second Trump Administration, or when travel bans may take effect. Employees from countries that have been the targets of prior travel bans may wish to reconsider foreign travel or, if currently abroad, return to the United States as soon as possible. Jackson Lewis will monitor developments and provide updates.

  • Creating “Homeland Security Task Forces”

President Trump has signed an executive order to establish “federal homeland security task forces” to enable federal, state, and local law enforcement to cooperate in removing gang members, criminals, and undocumented individuals. The willingness of local law enforcement to cooperate with Immigration and Customs Enforcement (ICE) varies significantly across jurisdictions. The executive order also prioritizes execution of the immigration laws against all inadmissible and removable aliens.

Employers, particularly those with who employ large numbers of individuals with temporary work authorization, should have an action plan in place in the event of an ICE enforcement action, also known as raids. Jackson Lewis attorneys can assist in the development of action plans and staff training.

  • Reinstating the “Remain in Mexico” Policy, Ending “Catch and Release,” and Eliminating the “CBP One App”

President Trump has revoked President Joe Biden’s Executive Order 13993 – Revision of Civil Immigration Enforcement Policies and Priorities, designed to prioritize the removal of individuals convicted of violent offenses while strengthening family reunification policies. President Trump has reinstated the “Remain in Mexico” policy, ended the longstanding practice of “Catch and Release,” and eliminated the CBP One App.

Remain in Mexico

Remain in Mexico, a policy implemented during the first Trump Administration, requires asylum seekers to wait in Mexico, rather than the United States, while their asylum applications are processed by U.S. immigration courts. It is unclear if Mexico will cooperate with this policy during the second Trump Administration.

Individuals in the United States with pending asylum applications are eligible to apply for work authorization once their asylum applications have been pending for at least six months. In the face of lengthy adjudication backlogs, USCIS currently issues asylum seekers work authorization documents valid for five years.

It is unclear if individuals in the United States with pending asylum applications will continue to receive work authorization documents valid for five years, or if there will be efforts to suspend work authorization for these individuals entirely. Jackson Lewis attorneys will monitor developments and provide updates.

Ending Catch and Release

“Catch and release” refers to the practice of releasing detained individuals into the community to wait for their cases to be processed by immigration courts. The term, which originated during the first Bush Administration, has been implemented during every administration since, including the first Trump Administration, due to limitations related to available detention space.

Elimination of the CBP One App

President Trump has eliminated CBP One, an app that granted appointments, based on a lottery system, to 1,450 people per day at one of eight border crossings. Individuals granted appointments were “paroled” into the United States pursuant to presidential authority.

Once in the United States, these individuals were permitted to apply for work authorization, and they often also apply for asylum. It is unclear if individuals currently in the United States pursuant to Biden-era humanitarian parole, which protects them from deportation, will be able to renew their parole and work authorization. Jackson Lewis attorneys will monitor developments and provide updates.

Other executive orders designed to enhance President Trump’s immigration agenda include:

  • Suspending Refugee Resettlement

President Trump has revoked President Biden’s Executive Order 14013 – Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration, designed to enhance refugee resettlement programs. President Trump has signed an executive order suspending the Refugee Resettlement Program for an initial 90 days.

Pursuant to Executive Order 14013, nearly 1,660 Afghans cleared to resettle in the United States, including family members of active-duty military personnel, have been removed from flights to the United States.

The new Executive Order directs the Department of Homeland Security and the State Department to issue a report every 90 days to enable President Trump to determine whether the program “would be in the interests of the United States.”

  • Clarifying the Military’s Role in “Protecting the Territorial Integrity of the United States”

This order directs the military to “repel forms of invasion including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.”

  • Declaring a National Emergency at the Southern Border

President Trump’s declaration of a national emergency along the U.S.-Mexico border permits the Department of Defense to deploy armed forces to the border to free up resources to build a wall and erect other barriers. The Secretary of Defense is specifically directed to deploy troops and National Guardsmen to the border.

  • Designating Cartels as Foreign Terrorist Organizations

President Trump has signed an order designating drug cartels and other criminal organizations, including the MS-13 and Tren de Aragua gangs, which originated in El Salvador and Venezuela, respectively, as foreign terrorist organizations, or Specifically Designated Global Terrorists.

The order, which cites the Alien Enemies Act enacted more than 200 years ago, specifically directs authorities to remove members of the Tren de Agua on the ground that the group is conducting an invasion of the United States.

  • Denying Asylum to Individuals Apprehended Between Ports of Entry

President Trump has revoked President Biden’s Executive Order 14010 – Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border. The order was designed to ensure that individuals’ asylum applications could be processed at the border, discouraging dangerous undocumented crossings while facilitating the entry of individuals who had waited in Mexico for prolonged periods while their asylum applications were processed, specifically those subject to the Migrant Protection Protocols instituted by the first Trump Administration. President Trump’s order renders individuals apprehended while attempting to cross the border between ports of entry ineligible for asylum, subjecting them to immediate removal from the United States without the opportunity to apply for asylum.

It is not clear what will happen to asylum seekers currently in ICE custody who were apprehended attempting to cross the border before Trump took office.

  • Restoring the Death Penalty When a Law Enforcement Officer Is Murdered

President Trump has signed an executive order directing the attorney general to seek the death penalty when an undocumented individual murders a law enforcement officer or commits another capital crime.

States attorney generals and district attorneys are also encouraged to pursue the death penalty when an undocumented individual murders a law enforcement officer.

President Trump has also revoked Biden-era executive orders that have not yet been replaced with President’s Trump’s own executive orders.

For example, President Trump has revoked President Biden’s Executive Order 14012 – Restoring Faith In Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. This order established USCIS deference to prior decisions in certain cases, for instance H-1B extensions, streamlined the naturalization process, and reduced the number of Requests for Evidence and denials received by employers and individuals applying for immigration benefits. The outcome of these revocations is not yet clear. Jackson Lewis attorneys will monitor adjudication trends and provide updates.

For additional information on any of the executive orders outlined above, including steps to prepare for and respond to these orders, please contact your Jackson Lewis attorney.

Skilled immigration is making headlines with renewed focus on the H-1B nonimmigrant visa program, the most popular employment-based visa for foreign professional workers. View our full legal update and insights here.

President Joe Biden is extending Deferred Enforced Departure (DED) for 24 months through Feb. 5, 2027, for any Hong Kong resident (regardless of country of birth) currently living in the United States.

The Department of Homeland Security has been directed to:

  • Take measures to authorize employment authorization for the duration of the deferral; and
  • Consider suspending regulatory requirements for F-1 students who are Hong Kong residents.

Individuals must meet general admissibility requirements and:

  • Must not have voluntarily returned to Hong Kong or the PRC after Jan. 15, 2025; or
  • Failed to continuously reside in the United States since Jan. 15, 2025.

DED is a humanitarian administrative stay of removal and is authorized based upon the president’s constitutional authority to conduct foreign relations. DED was first authorized for Hong Kong residents in August 2021.

Instructions on how to apply for employment authorization will be published in the Federal Register. Lawmakers had sent a letter to President Biden requesting an extension for Hong Kong for four years until Jan. 20, 2029.

Please contact a Jackson Lewis attorney if you have any questions about applying for employment authorization pursuant to DED.

Romania will be the 43rd country to become a member of the Visa Waiver Program (VWP). The new designation made by Secretary of Homeland Security Alejandro Mayorkas in conjunction with Secretary of State Antony Blinken will go into effect on or around March 31, 2025.

The VWP allows citizens or nationals of participating countries to travel to the United States for tourism or business purposes for up to 90 days without obtaining a visa.

The Electronic System for Travel Authorization (ESTA) online application and mobile app will be updated to include Romania.

Individuals must apply online through ESTA before coming to the United States on the VWP.

According to the secretaries, Romania met the stringent security requirements for this designation through a whole-of-government effort:

  • It had a visa refusal rate of under 3 percent in the last fiscal year;
  • It issues secure travel documents;
  • It extends reciprocal travel privileges to all U.S. citizens and nationals without regard to national origin, religion, ethnicity, or gender; and
  • It agreed to work closely with U.S. law enforcement and counterterrorism authorities.

U.S. citizens already are eligible to travel to Romania visa-free and are eligible to remain for up to 90 days for tourism or business purposes if they have a passport valid for at least three months from the date of arrival.

Romania is the fourth country to be added to the VWP by Secretary Mayorkas. It follows Croatia (2021), Israel (2023), and Qatar (2024).

Jackson Lewis attorneys are available to assist with any questions on international travel.

The Department of State (DOS) revised the J-1 Skills List, which lists home countries to which foreign nationals are subject to a two-year foreign home residency requirement.

  • The 37 countries that have been removed from the J-1 Skills List are: Albania, Algeria, Argentina, Armenia, Bahrain, Bangladesh, Bolivia, Brazil, Chile, China, Colombia, Costa Rica, Dominican Republic, Gabon, Georgia, Guyana, India, Indonesia, Kazakhstan, Laos, Malaysia, Mauritius, Montenegro, Namibia, Oman, Paraguay, Peru, Romania, Saudi Arabia, South Africa, South Korea, Sri Lanka, Thailand, Trinidad and Tobago, Turkey, United Arab Emirates, and Uruguay.
  • This change applies retroactively. J nonimmigrant exchange visitors who were subject to the two-year foreign residency requirement based upon the Skills List at the time of their admission to the United States in J status will no longer be subject to the residency requirement if their country has been eliminated from the list.
  • This change is particularly impactful for professionals who often face significant career disruptions and personal hardships due to the two-year foreign home residency requirement. Exempted individuals will be able to pursue further training and employment in the U.S. without disruption.
  • The elimination of this requirement for certain countries may make the United States a more attractive destination for top talent.

The change, however, does not affect individuals who are subject to the two-year requirement on other grounds, such as government funding or physicians in the United States for graduate medical training.

J-1 visas are work-and-study-based exchange visitor programs established by DOS. The Skills List that became part of that program was established to identify countries with a shortage of certain skills and then ensure that those who gained those skills in the United States would return to their home countries to ensure that knowledge and skills gained during the exchange program would be shared with the individual’s home country. From time to time, DOS revises the list to ensure it is accurately accomplishing the goal that foreign nationals return to their home country when most needed. In this revision, DOS is updating the countries included on the Skills List, but not updating the skills listed.

Jackson Lewis attorneys are available to assist companies and individuals with obtaining J visas and developing strategic alternatives for those in J status who remain subject to the two-year foreign home residency requirement.

The Department of Labor’s (DOL’s) Proposed Rule to add new occupations to the Schedule A list is “dead,” at least for now. Stakeholders see this as a disappointment and a missed opportunity.

  • The failure to move forward with this rule is a significant disappointment for many high-skilled immigrants and the employers who need them, all of whom would have benefited from the streamlined process for obtaining employment-based green cards.
  • Considering the current processing times for PERM Applications – which have ballooned over the past year and currently sit at around 15 months – expanded access to Schedule A would provide improved certainty regarding job opportunities for employers and foreign-born workers alike.

Schedule A list occupations do not require the employer to conduct a labor market test as part of a green card application process because the government has already determined that there are not enough U.S. workers available for these positions – thus simplifying and speeding up the process. Currently, the Schedule A list only includes physical therapists, professional nurses, and individuals of exceptional ability. The list is clearly outdated because there are many occupations, particularly in STEM fields, experiencing a national labor shortage.

The DOL began its Schedule A initiative with a Request for Information (comments) in December 2023. The goal was to consider how to add more STEM and non-STEM occupations to the list. The comment period was extended, but it seems the rule is not even on the DOL’s list of priorities. Those looking for relief will have to wait and see if the Trump Administration decides to pick up this initiative.

Jackson Lewis attorneys are available to assist with the processing of all types of green card cases, including Schedule A green cards.