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President-Elect Donald Trump is promising sweeping changes to the U.S. immigration system, with a focus on ramping up enforcement and the removal of undocumented immigrants. We can look to his first term, along with his campaign platform, to anticipate upcoming immigration action.

We expect President Trump will take swift action in the following areas through executive orders and policy directives:

  • Reinstatement of USCIS adjudication practices that resulted in increased denials, including the end of deference to prior decisions and expanded discretion in the denial of a petition or application without first requesting clarifying evidence.
  • Termination of certain humanitarian-based programs, including Temporary Protected Status (TPS) and parole programs for Cuba, Haiti, Nicaragua, and Venezuela. The continued status of Deferred Action for Childhood Arrivals (DACA) is uncertain.
  • Increased I-9 audits, worksite investigations, and site visits to verify H-1B and L-1 petition terms.
  • Travel restrictions and extreme vetting in visa interviews.

As his term progresses, Trump is expected to push additional changes to employment-based immigration, which are likely to include:

  • Changes to the H-1B program, such as re-defining “specialty occupation,” increasing wage requirements, and prioritizing H-1B cap registrations based on compensation levels.
  • Restrictions on Optional Practical Training (OPT) currently available to F-1 students engaged in a U.S. program of study.
  • Termination of individual work authorization programs, such as EADs for certain H-4 spouses.
  • Expanded tariffs.

Like what was proposed during his first term, the second Trump Administration may look to make more fundamental changes, such as ending birth-right citizenship and creating a merit-based immigration system focused on workers who possess: valuable skills, job offers, advanced education, ability to create jobs for U.S. workers, higher wages, and financial self-sufficiency. The aim of the proposed merit-based system was to attract high-skilled workers while reducing family-based immigrants. The plan also included protections for American jobs and wages, including recruitment requirements, displacement prohibitions, and wage floors. The proposal gave priority to young applicants, top graduate students from American universities, and those with extraordinary achievement and potential who are likely to contribute to society.

What does this mean for employers?

  • Tougher adjudications: During the first Trump Administration, employers saw a significant increase in the denial of immigration benefits, particularly H-1B, L-1, and O-1 work visa petitions. Employers should be prepared to provide additional documentation for otherwise routine petitions and for lengthier processing times in cases not submitted for “premium processing.”
  • Travel restrictions: Expanded travel bans would greatly hinder business and personal travel for covered workers and employees. Even in an emergency, travelers could find themselves unable to return to the United States. Employers should closely monitor international business travel requirements and carefully plan to avoid disruption from employee travel.
  • Enhanced screening: The further expansion of screening in the visa application process to identify extreme ideological positions and affiliations is expected to cause an increase in visa denials and significant delays in processing. Employers should plan for increased processing times for consular visa applications that could result in employees having to spend longer than expected outside of the United States.
  • Increased worksite investigations and raids: Employers should evaluate onboarding programs and I-9 compliance regularly through training and internal audits and ensure an escalation protocol is in place in anticipation of record number of I-9 audits and potential workplace raids. Employers should also expect an increased number of USCIS, DOJ/IER, and DOL investigations and audits related to employment of non-immigrant and immigrant employees.
  • Changes to the H-1B program: Employers should prepare for higher prevailing wage requirements, which may be prohibitive in both hiring new H-1B workers and continuing employment for existing H-1B workers. Changes in the prevailing wage rules would also impact H-1B1 and E-3 workers, as well as the employer-sponsored permanent residence application process where a labor certification is required.
  • Termination of humanitarian and individual work authorization programs (TPS, DACA, H-4 Spouse EADs): Many recipients of these programs have no other option for work authorization. If these programs are terminated, workers with these statuses will lose work authorization and may no longer be legally employable in the United States, causing disruption to business operations. Employers should anticipate potential loss of these employees, while being careful not to engage in unlawful discrimination.

Some measures require congressional action, while others can be addressed quickly through executive order or policy directive.

Employers should remain in close contact with immigration counsel to plan and develop strategies that make sense for their immigration programs as the second Trump Administration gets under way.

The Department of Homeland Security has released an additional 64,716 H-2B temporary visas for non-agricultural workers. The additional visas will help employers in hospitality, tourism, landscaping, construction, seafood processing, and others that employ temporary seasonal workers.

Of the newly released visas, 44,716 are divided in three allocations (between Oct. 1, 2024, and Sept. 30, 2025) for returning workers only. The other 20,000 will be allotted to workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras, regardless of whether those individuals are returning workers.

These additional H-2B visas are only for employers that can show they will suffer irreparable harm without the ability to employ the H-2B workers they are requesting. The employers will have to follow the full H-2B process: pass a labor market test and show that employing the H-2B workers they are requesting will not adversely affect the wages or working conditions of similarly employed U.S. workers. Any employers that have committed certain labor law violations in the H-2B program will be subject to additional scrutiny.

Jackson Lewis attorneys are available to assist employers in employing both H-2A farm and H-2B non-agricultural workers.

USCIS announced that it is extending the validity of certain Employment Authorization Documents (EADs) issued to Temporary Protected Status (TPS) beneficiaries from El Salvador, Honduras, Nepal, Nicaragua, and Sudan until March 9, 2025. Currently, most of these individuals are the beneficiaries of automatic extensions through June 30, 2024.

To implement these new extensions, USCIS is issuing Forms I-797, Notices of Action, to TPS beneficiaries who have pending applications to extend their EADs and to those who are eligible to re-register for TPS.

For Form I-9 Employment Eligibility Verification purposes, employees may present their Form I-797, along with their TPS-based EAD (EADs with Codes A12 or C19) that expire on one of the 17 expiration dates listed on I-9 Central.

The agency also reminded individuals eligible for TPS from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan who have not re-registered that they must do so by the below dates to maintain their TPS.

  • El Salvador until March 9, 2025
  • Honduras until July 5, 2025
  • Nepal until June 24, 2025
  • Nicaragua until July 5, 2025
  • Sudan until April 19, 2025
  • Haiti until August 3, 2024

A separate announcement regarding the extension of TPS for Haiti beyond August 3, 2024, will be published in the Federal Register on July 1, 2024.

Jackson Lewis attorneys will provide clarifications as soon as guidance is available.

The Department of Homeland Security (DHS) has extended and redesignated Temporary Protected Status (TPS) for Haiti until Feb. 3, 2026.

According to DHS Secretary Alejandro N. Mayorkas, the decision to renew and redesignate is based on the continued violence and insecurity in Haiti and limited access to safety, health care, food, and water in that country. In addition, Haiti is prone to flooding, mudslides, storm damage, and earthquakes that have resulted in ongoing humanitarian challenges.

The redesignation alone will allow approximately 309,000 Haitians who are otherwise eligible to make initial applications for TPS if they have continually resided in the United States on or before June 3, 2024. Initial TPS applications must be submitted from July 1, 2024, through Feb. 3, 2026.

Applications for TPS extensions and employment authorization document (EAD) renewals should be made during the 60-day re-registration period beginning on July 1, 2024, until Aug. 30, 2024. Individuals who have pending extensions and pending EAD renewals need not reapply. When their cases are adjudicated, the new documents will have Feb. 3, 2026, expiration dates. Applicants with the following EAD expiration dates will be eligible for automatic extensions of their EADs through Aug. 3, 2025, while they wait for their new EADs be approved:

2024: Aug. 3, June 30

2023: Feb. 3

2022: Dec. 31, Oct. 4, Jan. 4

2021: Oct. 4, Jan. 4

2020: Jan. 2

2019: July 22

2018: Jan. 22

2017: July 22

It is expected that special student relief for F-1 students from Haiti who are suffering severe economic hardship will also be extended.

Please see the official instructions that will be published in the Federal Register on July 1, 2024, for specific information.

Jackson Lewis attorneys are available to assist in making applications and determining proper work authorization procedures.

President Joe Biden has ordered a temporary suspension of asylum applications for migrants who cross the southern border illegally between ports of entry.

This suspension went into effect at midnight on June 5 because the number of illegal border crossings (or encounters) has reached the order’s threshold of 2,500 per day. If illegal encounters drop to 1,500 or fewer for 14 days, the suspension will be lifted; but it will be reinstated if the 2,500 threshold is breached again. The president stated that he took this action in response to Congress’ inability to pass the necessary legislation to remedy the border problem. He noted, “Doing nothing was not an option. We [had] to act.”

The order also calls for the quick deportation of illegal crossers to their home countries. The assumption is that if individuals understand they will not be able to remain in the United States to await asylum hearings, they will not make the arduous and often expensive trip to the border. The order will act as a deterrent to illegal immigration.

There are humanitarian exceptions to the order for unaccompanied minors and those who have been subjected to severe forms of trafficking. Those who have valid visas or other forms of lawful residence in the United States are also not covered by the order.

The authority for President Biden’s order is INA Section 212(f), the same section  that former President Donald Trump had relied on in promulgating rules attempting to control asylum applications at the border. Those rules were enjoined. The Biden Administration, however, noted that its order is very different from Trump’s bans for a number of reasons, including its humanitarian exceptions. Nevertheless, immigrant advocates have already said they are challenging the new order in court.

Migrants who do not cross the border illegally between ports of entry will still be able to use the CBP One app to make appointments to claim asylum. They will also be able to use the various other pathways, such as parole policies that have been created for citizens or nationals from countries that include Cuba, Haiti, Nicaragua, and Venezuela.

The Department of Homeland Security (DHS) has surged agents to the border and launched a Recent Arrivals docket to resolve cases more quickly for migrants seeking asylum. Absent additional funding from Congress, it is not clear how well this will work. Moreover, it is not clear whether this “surging” will affect other DHS backlogs.

Jackson Lewis attorneys are available to answer any questions you may have about the new executive order and its effects.

Washington, D.C. joins a growing group of states requiring employers to include projected salary ranges in job postings and to restrict the use of pay history in setting pay.

On Jan. 12, 2024, the mayor of D.C. signed the Wage Transparency Omnibus Amendment Act, which, among other things, requires private employers, regardless of size, to disclose pay ranges in all job postings and advertisements. Because the D.C. budget is controlled by Congress, the Amendment was sent to Congress for a 30-day review on Jan. 22, 2024, with a projected law date of March 9, 2024. The new law is scheduled to go into effect on June 30, 2024.

The Amendment requires employers to include in job postings the minimum and maximum projected salary or hourly wage for the position. Employers not only must disclose the projected salary in public job postings, but they also must do so in any internal job postings of the position. The Amendment also requires employers to disclose to prospective employees the existence of other benefits (such as healthcare or bonuses) before the first interview.

The Amendment prohibits employers from screening job applicants based on wage history. The Amendment does not specifically address remote positions.

Employers will be required to post a notice in the workplace notifying employees of their rights under this law. The notice must be posted in a conspicuous place in at least one location where employees congregate.

The new requirements under the Amendment will also affect the PERM labor certification process for employers sponsoring foreign nationals for “green cards.” Employers can prepare for these changes by:

  • Reviewing and modifying, as needed, all recruitment postings (both external and internal) to ensure these postings include the required salary ranges.
  • Reviewing internal interviewing protocols to ensure disclosure of benefit information upon request or before conducting a screening interview (whether by phone or in person) with an applicant for the PERM position.
  • Reviewing internal interviewing protocols to ensure no historical pay information is requested from prospective employees or from their prior employers. Indeed, this would not even be relevant because the applicant for the PERM position will know the salary range.
  • Training employees involved in the PERM process on the benefit disclosure requirements and the salary history restrictions.

The law aims to increase pay equity and to address historical wage gaps. While the law does not create a private right of action for employees, the Amendment provides the attorney general the authority to investigate violations and to bring civil actions against an employer or seek remedies on behalf of individuals or the public. Employers found to have violated the law may be subject to civil fines ranging from $1,000 to $20,000 per occurrence.

Jackson Lewis attorneys are available to assist in navigating the best strategy for PERM processes in light of the many new pay transparency laws.

USCIS has announced that it is extending the Temporary Protected Status (TPS) re-registration periods for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan from 60 days to the end of the full 18-month extension period.

The dates are as follows:

  • El Salvador         March 9, 2025
  • Haiti                    August 3, 2024
  • Honduras           July 5, 2025
  • Nepal                  June 24, 2025
  • Nicaragua           July 5, 2025
  • Sudan                 April 19, 2025

TPS is a temporary benefit that allows individuals to remain lawfully in the United States without being subject to detention due to lack of status. The secretary of Homeland Security “may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.”

This announcement means that current TPS beneficiaries who have not yet re-registered for TPS or who have not yet applied to renew their Employment Authorization Documents (EADs) may do so until the end of the current TPS period.

This re-registration period extension does not change any of the previously announced eligibility requirements.

Jackson Lewis attorneys are available to assist you with any questions about TPS, TPS EAD extensions, or how to complete Form I-9 Employment Eligibility Verifications.

Congress has approved an additional 64,716 H-2B visas for fiscal year 2024, supplementing the 66,000 available annually. As in prior years, restrictions will apply. A temporary final rule has been published in the Federal Register setting out the procedures involved.

H-2B visas for temporary, seasonal nonagricultural workers are used primarily for jobs in tourism and hospitality, landscaping and construction, and food processing. Once the annually available 66,000 visas run out, employers are forced to continue operations without sufficient number of workers. The initial allocation of H-2B visas for FY 2024 ran out on October 11, 2023, just days after USCIS began accepting applications.

The supplemental visas are available to employers who can provide evidence they are suffering or will suffer irreparable harm if they are unable to supplement their permanent staff with temporary H-2B workers. The additional visas are going to be distributed in several allocations throughout the year.   

The plan is to have four allocations:

  • First half of FY 2024 (October 1 – March 31): 20,716 for returning workers with start dates on or before March 31, 2024 (regardless of nationality)
  • Early second half of FY 2024 (April 1 – May 14): 19,000 for returning workers with start dates from April 1, 2024, to May 14, 2024 (regardless of nationality)
  • Late second half of FY 2024: 5,000 for returning workers with start dates from May 15, 2024, to September 30, 2024 (regardless of nationality)
  • For the entirety of FY 2024: 20,000 visas reserved for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, and Haiti without regard to whether they are returning workers

When adjudicating cases for the additional visas, the Departments of Homeland Security and Labor have indicated they will also consider the impact on U.S. workers and make every effort to protect the H-2B workers from exploitation through rulemaking.

Individuals from 89 countries are eligible to apply for H-2B visas. This year, Bolivia was added to the list.

Jackson Lewis attorneys are available to assist in navigating the H-2B process, which involves not only capturing one of the limited number of visas available, but also following complex rules regarding filing dates, labor market tests, visa applications, and proving irreparable harm.

Diversity Visa (DV) Electronic Registration for Fiscal Year (FY) 2025 opens at noon ET on October 4, 2023, and closes at noon ET on November 7, 2023. There will be 55,000 Diversity Visas available for FY 2025.

There is no cost to register, but, if selected, applicants must pay the visa application or I-485 Adjustment of Status fees. Filing more than one application will lead to disqualification for the program.

Individuals born in certain countries are not eligible to apply because more than 50,000 nationals of those countries have immigrated to the United States in the past five years. The list of ineligible countries includes:

Bangladesh, Brazil, Canada, China, including Hong Kong, SAR (natives of Macau SAR and Taiwan are eligible), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, Republic of Korea (South Korea), Venezuela and Vietnam.

Except for the United Kingdom, the “ineligible” list is the same as it was last year. This year, natives of the United Kingdom and its dependent territories are eligible.

Eligibility requirements and application instructions are on the Diversity Lottery website. Only the primary applicant (not dependents) must meet the eligibility requirements. Beyond nationality, the primary applicant must have:

  • At least a high school diploma or its equivalent; or
  • Two years of work experience in an occupation that requires at least two years of training or experience.

The Department of State describes how to confirm eligibility on its website.

Interested applicants should apply early and not wait until the last week, when heavy demand could lead to website delays. Applicants must apply online. No late or paper entries are accepted. Non-U.S. residents seeking to obtain a green card who are otherwise eligible may apply even if they are living abroad.

Jackson Lewis attorneys are available to answer questions about the Diversity Lottery process.

On Equal Pay Day, Congresswoman Eleanor Holmes Norton (D-DC) introduced three bills, including a national pay transparency bill, that she believes would help to close the pay gap between men and women.

She chose Equal Pay Day for the introduction of these bills because it marks the additional days women must work to earn what men earned the prior year.

One of the bills, the Salary Transparency Act, amending the Fair Labor Standards Act, would require all U.S. employers to provide the salary range for jobs in all advertisements. The salary range would need to include wages and other forms of compensation the employer anticipates offering the successful candidate for the job opportunity. The act includes civil penalties ranging from $5,000 for a first violation, increased by an additional $1,000 for each subsequent violation, not to exceed $10,000, plus liability to each job applicant for damages and reasonable attorneys’ fees. The bill also includes a private right of action.

This bill comes at a time when more states are adopting their own pay transparency laws, many of which have different requirements. Due to the difficulty of conforming to these various  laws, “some large corporations including Airbnb Inc. and Microsoft Corp. have begun to include pay information in all US job ads, which they’ve said also helps attract and retain employees.” Indeed, some employers, when doing PERM Labor Certification cases for sponsored visa employees, are choosing to comply with the most restrictive state law in their footprint to avoid possible state law violations, while balancing different geographic pay differentials, especially when many jobs can be worked remotely from anywhere within the United States. In that regard, federal legislation may come as a relief for some multi-state employers, particularly if it helps slow the wave of new and varied state requirements, which make compliance more difficult.

As compliance with a patchwork of state laws becomes more and more burdensome, employers will have to decide how risk-averse they are.

Jackson Lewis attorneys are available to assist in strategizing on how to comply with pay transparency laws in the employment and immigration arenas.