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 540-day automatic extensions of expiring employment authorization documents (EADs) will be permanent policy, according to a DHS final rule scheduled to be published on Dec. 13, 2024. The new rule will become effective on Jan. 13, 2025.

EAD applicants will be entitled to the 540-day automatic extensions if:

  • They timely filed an EAD renewal application between May 4, 2022, and Sept. 30, 2025;
  • They are requesting renewal in the same category as the expired EAD; and
  • They meet other general eligibility requirements.

Those who are eligible for 540-day automatic extensions include:

  • Refugees (A03)
  • Asylees (A05)
  • Adjustment of status applicants (C09)
  • Spouses of E nonimmigrants with unexpired I-94s in E status (A17)
  • Spouses of H-1B nonimmigrants with unexpired I-94s in H-4 status (C26)
  • Spouses of L-1 nonimmigrants with unexpired I-94 showing L-2 status (A18)
  • Special agricultural workers (C20)
  • VAWA beneficiaries and children (C31)
  • Temporary Protected Status (TPS) beneficiaries (A12 and C19)

Automatic extensions will generally end when USCIS issues its decision on the EAD renewal application or at the end of the 540-day period, whichever is earlier.

Some Variations

TPS applicants may have their EADs automatically extended by this new final rule or they may receive automatic extensions of EADs through Federal Register notices. In either case, the extension will not extend past the TPS Designated Through date in the Federal Register.

L or E spouses with proper annotations on their I-94s have employment authorization incident to status, so they may not need an EAD.

F-1 students who have pending STEM optional practical training (OPT) extensions applications are not eligible for the 540-day extension, but they may be eligible for 180-day automatic extensions.

Calculating the Extension

To ease the 540-day calculation, USCIS created a tool: EAD Automatic Extension Eligibility Calculator. The calculator helps to determine the 540-day end date once you know whether the 540-day automatic renewal applies.

Form I-9 Employment Verification

To receive the automatic extension for I-9 purposes, the individual must present the expired EAD and a receipt showing a timely-filed extension submitted between May 4, 2022, and Sept. 30, 2025.

Based upon legislative rules regarding regulations enacted near the end of an administration, this 540-day automatic extension could be removed, amended, or rescinded by the new Trump Administration. It would be advisable, therefore, to file for EAD extensions as soon as possible before Jan. 20, 2025.

If you have questions about filing for extensions, calculating EAD extensions, or preparing Form I-9 Employment Verification Authorizations, Jackson Lewis attorneys are available to assist you.

The U.S. Supreme Court held in Bouarfa v. Mayorkas, No. 23-583 (Dec. 10, 2024), that one cannot appeal a U.S. Citizenship and Immigration Services (USCIS) revocation of an approved visa petition in federal court because such revocation is a discretionary agency decision, thus not subject to judicial review.

This decision applies to petition revocations and federal judicial review only. It does not apply to judicial review of denied visa petitions. For an initial denial a petitioner may seek relief through either USCIS or federal court. For a revocation of an approved petition, a petitioner may still seek a reversal through in-agency options, including filing a motion to reopen or reconsider with USCIS or an appeal to the Administrative Appeals Office.

In Bouarfa v. Mayorkas, USCIS had revoked an approved I-130 petition filed on behalf of a Palestinian national on the basis of his marriage to the petitioner in 2017. USCIS revoked the petition on the ground that the beneficiary had previously entered into a sham marriage with an ex-wife for immigration purposes. USCIS initially approved the I-130 in 2015.

Following an unsuccessful appeal to USCIS, the petitioner filed suit in federal district court in Florida, with subsequent appeals to the U.S. Court of Appeals for the Eleventh Circuit, and the U.S. Supreme Court. The petitioner primarily argued that because federal courts can review an initial denial of a petition, the same should hold in the case of a later revocation of an approved petition.

In a unanimous decision, the Court affirmed the Eleventh Circuit’s decision that federal courts lack the authority to review a USCIS revocation. Justice Ketanji Brown Jackson stated that “Congress granted the Secretary [of Homeland Security] broad authority to revoke an approved visa petition ‘at any time, for what he deems to be good and sufficient cause.’ Such a revocation is thus ‘in the discretion of’ the agency.”

Jackson Lewis attorneys are available to assist in determining strategies for any applications denied or revoked by USCIS.

Some colleges and universities, out of an abundance of caution, are advising their foreign national students and staff who are traveling abroad for winter break to consider returning before President Donald Trump’s inauguration on Jan. 20, 2025.

It is not possible to predict what will happen with any certainty, but President Trump has spoken about reinstituting travel bans. Recall that, in January 2017, he signed an executive order for the “Muslim” travel ban within days of his inauguration. That initial travel ban created a good deal of confusion at airports and ports of entry before being blocked through litigation. It took the first Trump Administration some time to draft a travel ban that would pass U.S. Supreme Court muster.

The first Trump Administration’s third iteration of the ban, known as Travel Ban 3.0, was upheld by the Supreme Court and went into effect in late 2017. It restricted travel to the United States for individuals from certain largely Muslim countries: Iran, Libya, Somalia, Syria, and Yemen. It also limited travel for individuals from the non-majority Muslim countries of North Korea and Venezuela. Chad, Iraq, and Sudan had originally been on the list but were removed.

Travel Ban 3.0 contained important exemptions for Green Card Holders, current visa holders, dual nationals traveling on a passport from an unaffected country, and others. Although there were no blanket waivers, consular officers adjudicating visa applications were given the discretion to consider the circumstances and grant waivers. The executive order indicated that waivers might be appropriate for individuals previously admitted for work, study, or other long-term activity or individuals entering the United States to visit or reside with a close family member or others.

To pass constitutional muster, similar exemptions would probably be part of any new travel ban executive order from the second Trump Administration.

Jackson Lewis attorneys are available to assist you in determining what, if any, information would be appropriate to provide to foreign nationals who have travel plans and expect to the return to the United States after Jan. 20, 2025.

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.

On Nov. 25, 2024, the U.S. District Court for the Southern District of Mississippi blocked enforcement of the Department of Labor (DOL) rule granting organizing protections to farmworkers on temporary H-2A visas by entering a nationwide injunction.

The decision follows the August 26 ruling by a federal court in Georgia blocking enforcement of the DOL rule only as to 17 states. A separate court ruling in Kentucky blocked enforcement of the rule in four states and members of several associations. The recent ruling extends this patchwork nationwide.

The DOL has not yet responded regarding the injunction.

Approximately nine million U.S. citizens live or work abroad, and some want to renounce their U.S. citizenship. Many do so with regret but renounce to avoid various financial issues. Others consider themselves “accidental Americans” who maintain no connection with the United States.

While the reasons for renouncing U.S. citizenship vary, issues include:

  • The United States levies taxes on those who meet the established thresholds based on citizenship regardless of where they live and regardless of whether they maintain strong ties to the United States.
  • The 2010 Foreign Account Tax Compliance Act (FATCA) requires foreign banks to report accounts held by U.S. citizens to the IRS, leading some foreign banks to eschew doing business with U.S. citizens – including giving loans or mortgages.
  • Under FATCA and the long-standing requirement for reporting foreign financial accounts, Report of Foreign Bank and Financial Accounts (FBAR), certain U.S. citizens must report financial assets that are held abroad to the IRS or risk civil or criminal penalties.
  • Simply preparing all the necessary filings can be costly.
  • U.S. citizens living abroad can be subject to capital gains tax on their primary residence because the U.S. government considers the home foreign property.

The cost has led former U.S. citizens who have renounced their U.S. citizenship to file a class action lawsuit to recover almost $1,900 each in fees they paid for the renunciation. Until 2010, there was no fee involved. In 2010, a $450 fee was imposed. Four years later, in 2014, the fee jumped to $2,350. The suit alleges that the fee violates the Administrative Procedures Act because it is arbitrary and capricious. The plaintiffs allege the fees go well beyond the actual cost to the Department of State to process the renunciations, which the State Department contests. They also claim the fee violates their constitutional right to expatriate. If the case succeeds, some 30,000 former U.S. citizens who renounced their U.S. citizenship could be eligible for refunds. In the meantime, the State Department is considering reducing the fee back to $450.

The case was filed in the U.S. District Court for the District of Columbia. While the judge questioned whether the former U.S. citizens had standing to sue, he ultimately held the case was in the wrong forum and had to be brought in the Court of Federal Claims.

The decision to renounce U.S. citizenship comes with pros and cons that can vary person to person. It is a complex decision that requires careful consideration of the legal, financial, and even emotional implications. It is crucial to seek professional tax and immigration advice.

In October, DHS announced that Lebanese nationals would be eligible for Temporary Protected Status (TPS). On Nov. 27, 2024, that became official. TPS has been granted for 18 months, from Nov. 27, 2024, through May 27, 2026.

Individuals who are otherwise eligible must have been residing in the United States since Oct. 16, 2024, and be physically present in the United States since Nov. 27, 2024.

Applications should be made during the registration period, which runs from Nov. 27, 2024 through May 27, 2026. Those who apply may also apply for employment and travel authorization. For full details, see the Federal Register.

Canada is reducing the number of permanent and temporary residents it will admit over the next couple of years over concerns about housing prices as well as stress on infrastructure and social services due in part to the high levels of immigration.

This may impact U.S. companies and U.S. institutions of higher education most.

For U.S. companies, this change has an upside and a downside. Those that cannot obtain enough H-1B visas to hire the number of foreign nationals they require will no longer have the convenient option of sending employees to Canada to work remotely. On the other hand, foreign nationals who have planned to leave the United States for better immigration prospects in Canada, may now want to try to stay in the United States. If they do, U.S. companies will have a larger talent pool to draw from, and this may cause them to expand their visa sponsorship policies, and if the Trump Administration doesn’t take steps to narrow the eligibility for H-1B visas, experience higher retention rates and less upward pressure on salaries.

As for institutions of higher education in the United States, international students who were deciding to go to Canada instead of U.S. colleges and graduate schools, due in part to the belief that post-graduation job prospects might be better there, may be rethinking their plans. Tuition from foreign students has long been essential to the budgets of colleges and universities and the number of foreign nationals coming to the United States for school has been declining. If Canada is not an option, then more applications from foreign nationals may go to U.S. schools.

For more than a decade, foreign nationals have found it difficult to obtain H-1B visas and “green cards” in the U.S. due to the limited number of slots available and the restrictive policies of the first Trump Administration. Throughout this time,  highly skilled foreign nationals and international students were choosing to move to Canada from the United States on their own to obtain work authorization and permanent residence more quickly. International students who couldn’t obtain H-1B sponsorship due to unsuccessful H-1B lottery registrations have often left for Canada. This has been a boon to the Canadian economy. Now, the tide has turned, and this may be advantageous for the United States economy if the high-skilled workers and international students choose the United States over other countries.

Jackson Lewis attorneys are available to assist in developing strategies to deal with predicted changes in U.S. immigration for 2025.

Legal standing to sue is central to various state challenges to immigration policies. A party can only bring a lawsuit if they can demonstrate sufficient connection and harm from the challenged policy. The U.S. Supreme Court may soon address whether indirect economic harm is sufficient to confer standing, particularly in the context of the DACA (Deferred Action for Childhood Arrivals) program. The program grants temporary protection from deportation and a two-year work permit for some undocumented immigrants who came to the United States under the age of 16.

In 2018, Texas and seven other states challenged the validity and constitutionality of DACA, using economic issues to establish standing. Texas won at the district court level, and the case has been moving through various stages and appeals. Meanwhile, DHS has been permitted to extend DACA for individuals who already have it, but it cannot grant any new initial applications based on the court’s ruling.

Following the district court’s initial decision, the Biden Administration aimed to strengthen DACA in accordance with the court’s ruling by making it the subject of a new final rule through a notice-and-comment process. However, the new rule was challenged and ended back in the district court. The court ruled against DACA once more. The case was appealed to the U.S. Court of Appeals for the Fifth Circuit. Almost six years after the initial challenge, in early October 2024, the Fifth Circuit heard oral argument.

During oral argument, the three-judge panel focused on the standing issue. Joined by other Republican-led states, Texas argued that DACA imposes greater costs on them due to of the number of immigrants that are drawn to their states, thus establishing standing.  In response, 21 Democratic-led states joined in the case in support of DACA. Led by New Jersey, they argued that DACA recipients are directly contributing to the economies of their states and therefore their states have standing because they would be harmed if DACA were eliminated. This case will likely make its way to the U.S. Supreme Court once the Fifth Circuit rules on standing.

Currently, more than 535,000 people have DACA protection. Whether their status remains stable may ultimately depend upon congressional action.

Jackson Lewis attorneys will continue to follow this matter and provide updates as they become available.