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As many expected, President Donald Trump has not only issued Executive Orders (EOs), but he has also rescinded many EOs issued by the Biden Administration concerning immigration, including the following: “The Restoring Faith in Our Legal Immigration Systems and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Other Biden-era EOs regarding immigration that have been rescinded include: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.

Following his inauguration on Jan. 20, 2025, President Trump issued a number of immigration-related Executive Orders (EOs) sure to have impact on employers and their business operations. So far, the focus in the media has been on border security, asylum, refugees, removal of undocumented aliens (deportation) and birthright citizenship. However, there are other aspects covered by the EOs that will have far more impact on U.S. employers and could potentially impact business operations. While we anticipate court challenges to some or all of the EOs, we anticipate that many of the EOs will withstand litigation and will be implemented substantially. Below is a summary of the EOs:

Banning Birthright Citizenship

This EO directs federal agencies to refuse to recognize U.S. citizenship for children born in the U.S. to mothers in the country without authorization or who are present in the United States on nonimmigrant 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 immigration status, if any, these children would hold at birth or if these children would be issued U.S. birth certificates.

Please note: Several lawsuits have been filed challenging this EO. Following a suit filed in U.S. District Court in Seattle by the attorneys general of Washington State, Oregon, Arizona and Illinois, Judge John Coughenour enjoined enforcement of this order, calling it “blatantly unconstitutional.”

Potential Impact on Employers if Upheld

  • Increased visa sponsorship costs if the employer covers dependent visa legal and filing fees;
  • Potential travel delays for visa employees traveling with family for holidays or vacations as U.S.-born children will require passports of the parents’ home country, dependent visas issued by U.S. consular posts abroad and outbound visas to visit and transit countries that do not typically require visas for U.S. citizens; and
  • These children will lose lawful immigration status at age 21, the age at which children are no longer deemed dependents for immigration purposes, potentially impacting long-term colleague retention. This could be a particular concern for visa employees from countries like India and China, where foreign-born children often age-out due to lengthy green card backlogs.

Enhanced Visa Vetting

President Trump has signed an order to enhance vetting and screening of undocumented aliens, suspend entry of migrants from countries of particular concern and re-establish a uniform baseline for visa screening and vetting standards and procedures consistent with the baseline that existed during the last Trump administration. 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 the Supreme Court ultimately upheld them.

Potential Impact on Employers

  • Lengthy visa processing delays related to background checks for traveling work visa employees;
  • Disrupted business travel for citizens of banned countries, preventing them from leaving the U.S. for fear of becoming stranded outside the country;
  • Difficulty filing extension of status and change of status petitions for citizens of these countries; and
  • Disrupted business travel for all visa employees with temporary work visas.

Recission of President Biden’s EO Designed to Limit Requests for Evidence and Denials

One of President Trump’s EOs revoked 78 Biden EOs, including President Biden’s EO Number 14012 (Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans) which 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 Trump EO will lead to reinstatement of USCIS adjudication practices in place during the first Trump administration.

Potential Impact on Employers

  • Increased scrutiny of employer visa petitions and denials, including the end of deference to prior adjudications/decisions;
  • Increased costs and processing times associated with non-immigrant and immigrant visa petitions;
  • Limited number and scope of individuals employers are able to sponsor for immigrant and non­immigrant visas;
  • Disrupted HR and other internal operations;
  • Increased Requests for Evidence, Notices of Intent to Revoke or Deny. Denials can create uncertainty about visa employees’ ability to remain with the business and, in some cases, impact an individual’s work authorization;
  • Anticipated 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 could further limit employers’ ability to sponsor foreign nationals for H-1B visas; and
  • Anticipated restrictions on F-1 Optional Practical Training (OPT), termination of certain work authorization programs, such as H-4 EADs might force employers to reevaluate their talent acquisition pools and strategies.

Potential Recission of Humanitarian Parole and Temporary Protected Status

President Trump signed an EO on enforcement of U.S. immigration laws which, among other focus areas, aims to limit Humanitarian Parole to individuals who demonstrate “urgent humanitarian reasons for a significant public benefit derived from their … continued presence in the United States.” The EO also seeks to ensure “that designations of Temporary Protected Status are consistent with the provisions of section 244 of the INA (8 U.S.C. 1254a), and that such designations are appropriately limited in scope and made for only so long as may be necessary to fulfill the textual requirements of that statute.” Furthermore, the EO seeks to ensure “that employment authorization is provided in a manner consistent with section 274A of the INA (8 U.S.C. 1324a), and that employment authorization is not provided to any unauthorized alien in the United States.”

During President Trump’s initial term, he attempted to terminate TPS designations for Sudan, Nicaragua, Haiti, El Salvador, Nepal and Honduras. These terminations faced court challenges that resulted in injunctions against the termination of TPS designations.

If President Trump attempts to terminate TPS designations for any of the currently designated countries, similar legal challenges and injunctions are anticipated.

Individuals granted Humanitarian Parole and TPS are permitted to live and work in the U.S. in usually granted one-year increments.

Potential Impact on Employers

  • Employees authorized to work pursuant to Humanitarian Parole may be unable to renew their parole and related work authorization or they may receive Requests for Evidence requesting evidence of their need for Humanitarian Parole. (Renewal of Humanitarian Parole is within DHS’s discretion.) Barring legal challenges or work authorization through alternative avenues such as a pending asylum application, these workers may be terminated for lack of work authorization.
  • Workers from countries facing TPS termination would need to monitor pending litigation, including when and how to renew TPS. Relevant information about pending litigation, injunctions and steps DHS takes to comply with injunctions is communicated through Federal Register Notices for each country, available at Temporary Protected Status | USCIS.
  • Employers would need to monitor employment authorization expiration dates, including automatic extensions, for TPS holders that may be impacted by litigation and conduct I-9 re-verifications accordingly.

Creating “Homeland Security Task Forces”

President Trump has signed an EO 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 EO also prioritizes execution of the immigration laws against all inadmissible and removable aliens.

We also anticipate increased ICE enforcement actions, including I-9 audits and investigations, employer site visits and raids at workplaces or in immigrant communities to find undocumented workers.

Employers should have an action plan in place in the event of an ICE enforcement action. This is particularly true for employers in industries that employ large numbers of workers who may be undocumented or who have temporary work authorization.

Potential Impact on Employers

  • Worksite disruptions and absences as undocumented workers or those living in mixed-status families may be concerned about coming to work;
  • Workers fear detention under the new Laken Riley Act because they have had prior arrests, have been charged with a crime — even if they have not been convicted, or are under investigation for a criminal offense;
  • In the event of an I-9 audit or investigation, an employer could face civil fines up to $2,789 per form and up to $5,579 for knowingly hiring undocumented workers, for a first offense;
  • Criminal charges and penalties of up to 10 years and fines of up to $250,000 for harboring undocumented workers;
  • Debarment from federal contracts; and
  • Operational disruptions and public relations challenges.

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.

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.

In response to the Executive Order (EO) on Artificial Intelligence, on December 21, 2023, the Department of Labor (DOL) issued a request for information in the Federal Register asking for public comment on possible additions to the Schedule A list, including more STEM or non-STEM fields.

On October 30, 2023, as part of the EO, President Joe Biden directed government agencies to identify new pathways, and build upon existing programs, to attract and retain the best foreign nationals with AI (and other emerging technologies) knowledge, skills, and education. One of the directives was to solicit input, within 45 days, on how to identify AI occupations (and possibly others) for inclusion on the Schedule A list of occupations that have a fast track to permanent residence (“green cards”).

Schedule A occupations do not require that the employer conduct a labor market test because the government has already concluded there are insufficient numbers of qualified U.S. workers available in those fields. To date, Schedule A occupations have been limited to physical therapists, professional nurses, and immigrants of exceptional ability in the sciences or arts, including certain college and university teachers, and immigrants of exceptional ability in the performing arts. Expanding the Schedule A occupation list will significantly enhance the ability of employers to attract and retained highly skilled employees.

DOL will accept input, including statistical data and other relevant information, on how the agency should establish a reliable, objective, and transparent methodology for revising Schedule A to possibly include more occupations until February 20, 2024.

Schedule A was established in the mid-1960s. Since then, there have been eight revisions (none were major) and the last revision was in 2004. DOL notes the United States is facing “headwinds” in developing enough U.S. workers in STEM (and some non-STEM) careers to replace those workers who are retiring. To build a stronger economy and meet AI challenges, DOL wants to know:

  • What are the sources of data the agency should use to establish unmet need?
  • How should the agency determine the severity of the shortages in various fields?
  • Should Schedule A include new STEM and non-STEM fields?

Jackson Lewis attorneys are available to answer your questions about how this might affect employer’s green card policies and to advise about the submission of comments to DOL regarding the possible expansion of the Schedule A list.

On October 30, 2023, President Joe Biden issued an Executive Order regarding the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” The Executive Order (EO) directs departments and agencies throughout the government, including the Department of Homeland Security (DHS) and the Department of State (DOS), to develop plans and policies to establish new standards for artificial intelligence (AI) use.

To this end, the EO calls for DOS and DHS to identify new pathways, and build upon existing programs, to attract and retain the best foreign nationals with AI (and other emerging technologies) knowledge, skills, and education.

This includes:

  • Streamlining visa processes for noncitizens who seek to enter the United States to work on, study, or research AI, including making more visa appointments available for those individuals;
  • Adding highly skilled talent in AI, including J-1 research scholars and F-1 students in STEM fields, to the list of those who will be able to take advantage of the upcoming program to allow visa renewal inside the United States;
  • Consider changes to the DOS’s J-1 Exchange Visitor Program so that those with AI skills can participate in these programs without becoming subject to the two-year home residence requirement which necessarily interrupts their ability to work in the United States;
  • Make appropriations available for programs to identify and attract top AI talent to U.S. universities, research institutions, and the private sector, including overseas educational components to inform top STEM talent of all U.S. visas options available to them;
  • Publish in all relevant languages informational resources, including a comprehensive guide on options for AI experts to work in the United States;
  • Initiate policy changes necessary to modernize immigration pathways for AI experts, including nonimmigrant and immigrant visas for those with outstanding or exceptional ability (i.e., O-1A nonimmigrant visas), EB-1 and some EB-2 immigrant visa petitions, and also target AI experts who are founders of start-ups to use the International Entrepreneur Rule to work in the United States;
  • Continue the H-1B modernization rulemaking process to make sure it supports the ability of those with AI skills to enter the United States and adjust status to permanent residence;
  • Solicit input on how to identify AI occupations for inclusion on the Schedule A list of occupations that have a fast track to permanent residence (“green cards”) because there are insufficient numbers of qualified U.S. workers available in the field.

DHS and DOS are already working on streamlining visa processes by eliminating backlogs, piloting stateside visa processing, and making it easier for those in STEM fields to enter and remain in the United States. With the EO, those in STEM fields, particularly those involved in AI, will be solicited by the United States and may have some additional advantages in terms of immigration opportunities.

Issuance of a Request for Information for possible additions to the Schedule A list is expected within 45 days, with other reports and plans to be issued over the year.

Jackson Lewis attorneys will be closely monitoring implementation of the EO and are available to answer questions you may have about possible new immigration options for AI workers.

On the same day his nominee for Secretary of the Department of Homeland Security (DHS), Alejandro Mayorkas, was confirmed, President Joe Biden signed several Executive Orders regarding immigration, including one that directs complete review of policies.

The first, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” is of particular interest to the business community.  It sets up a task force to conduct a top-to-bottom review of recent changes that have created barriers to legal immigration, including employment based. This will include a review of the public charge rule, fee increases, and streamlining of the naturalization process, among others. Recognizing the difficulties created over the past four years by the many unpublicized rule, policy, and guidance changes, this Executive Order directs a comprehensive agency review of all immigration-related regulations, orders, guidance documents, policies, and other similar agency actions that impede access to fair and efficient adjudications. It likely will include a review of the policies that led to a 21% denial rate and a 47% Request for Evidence (RFE) rate for H-1B petitions in FY 2020.

The second looks to roll back damaging asylum policies and develop an effective strategy to manage asylum cases across the region.

The third creates a task force to reunify families that were separated at the border.

These latest Executive Orders build on changes already made since January 20, 2021, including:

These Executive Orders and policy announcements are consistent with the administration’s stated goal of creating an immigration system that is more welcoming to immigrants and to the employers who rely on them. President Biden recognizes that “new Americans fuel our economy, as innovators and job creators, working in every American industry and contributing to our arts, culture, and government.”

Jackson Lewis attorneys will provide updates as they become available. Our attorneys are ready to assist with questions regarding changes and strategies.

 

 

 

 

 

The Biden administration announced that restrictions on travel known as the “14-Day Rules” will remain in effect, despite former President Trump’s decision to terminate some of them. These rules restrict entry by most non-U.S. citizens and non-Green Card holders from China, Iran, the United Kingdom, Ireland, Brazil and the 26 Schengen Zone countries.  While there are exemptions and national interest exceptions, these restrictions prevent travelers who have been in the named countries within 14 days prior to departure from entering the United States. On Saturday, January 30, 2021, South Africa will be added to the list of restricted countries due to the new strain of COVID discovered in that country. The new strain has not yet been discovered in the United States.

As of January 26, 2021, under CDC regulations, individuals who can travel to the United States will be required to provide proof of a negative COVID-19 test within three days of departure or documentation of recovery from COVID-19 before boarding flights. This requirement applies to all passengers over two years old flying to the United States from abroad, including U.S. citizens and Green Card holders. More than 120 countries have similar requirements. The White House confirmed that at this time there will not be any waivers for travelers coming from countries where testing is limited. The CDC also directs people to stay home for seven days upon return and get tested three-to-five days after return.

As a further preventive measure, mask-wearing will be required domestically at all airports, on commercial aircraft, trains, public maritime vessels, including ferries, and intercity bus services and on all federal properties.

Jackson Lewis will continue to follow these changes and provide updates as they become available.

President Joseph Biden signed the Proclamation on Ending Discriminatory Bans on Entry to The United States (“Proclamation Ending Discriminatory Bans”) during his first hours in office, terminating the controversial Muslim Ban and its sequel, the Africa Ban.

The Muslim Ban was based on an Executive Order (EO) that former President Donald Trump signed almost four years ago during his first days in office. Litigation around that Executive Order kept the Muslim Ban from going into effect until June 2018, when the U.S. Supreme Court upheld the ban in a 5-4 vote. The new Proclamation Ending Discriminatory Bans also will terminate some previously instituted proclamations regarding extreme vetting.

The Muslim Ban affected individuals from seven countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. While there were some exceptions, the EO basically blocked entry of citizens from those countries as immigrants or nonimmigrants. (Venezuela’s ban was directed solely at government officials and their family members.) Although waivers were available, almost 75% of all waiver requests reportedly were denied. The Africa Ban, issued in early 2020, blocked individuals applying for immigrant visas from Eritrea, Kyrgyzstan, Myanmar, and Nigeria and individuals applying for Diversity Visas from Sudan and Tanzania.

The Proclamation Ending Discriminatory Bans does not affect other travel restrictions related to COVID-19, including the Presidential Proclamations blocking the entry for immigrants and certain nonimmigrants due to economic conditions brought on by COVID-19. The Presidential Proclamations related to travel restrictions from the UK, EU, and certain other countries due to COVID-19 contagion concerns  will also remain in effect, notwithstanding the Trump administration’s indications that these would be withdrawn as of January 26, 2021.

Under the new Proclamation Ending Discriminatory Bans, the Department of State (DOS) will provide a proposal for how to reconsider applications denied based on now-suspended restrictions, a plan for adjudicating pending waiver requests, and recommendations on how to improve the vetting and screening process, including an assessment of the benefits of using social media identifiers in that process, among other things.

If you have any questions regarding the web of travel restrictions terminated and those still in effect, please reach out to your Jackson Lewis attorney.

The H-1B cap season for Fiscal Year 2026 is quickly approaching. USCIS announced on Feb. 5, 2025, that the registration period for FY 2026 will open at noon (EST) on Friday, March 7, 2025, and close at noon (EST) on Monday, March 24, 2025, and that the registration fee will go up significantly. Employers should begin evaluating their hiring needs and decide if they plan to sponsor foreign workers for H-1B classification this year.

H-1B Cap Registration Process

During the H-1B cap registration period, prospective petitioners and their representatives must use a USCIS online account to electronically register each beneficiary for the selection process and pay the associated registration fee. This year, the FY 2026 H-1B cap registration fee will increase from $10 to $215 per registration.

The H-1B visa is intended for foreign workers in specialty occupations — jobs that require at least a bachelor’s degree (or equivalent) in a specific field. Examples of specialty occupations include careers in architecture, engineering, medicine and health, accounting, and law. Additionally, H-1B beneficiaries must possess the necessary educational credentials for the position.

Eligible H-1B beneficiaries may include recent foreign student graduates present in the United States in F-1 student status and any other foreign professional whether in the United States or abroad.

H-1B Visa Caps

The a statutory cap is 65,000 H-1B visas (regular cap), with an additional 20,000 visas for foreign professionals with an advanced degree from a U.S. academic institution (master’s cap). If USCIS receives more registrations than H-1B visa numbers available, it conducts a random lottery to select the registrants who may be the beneficiary of an H-1B petition. Those selected are notified and provided instructions on where and when to file the H-1B petition. The employer then may file an H-1B petition for each selected worker.

The earliest possible date to request H-1B status in the petition is Oct. 1, 2025, which is the start of federal FY 2026.

Continued Beneficiary-Centric Selection Process

This year, USCIS will continue its beneficiary-centric selection process introduced last year. This approach has helped reduce attempts to gain an unfair advantage in the system and minimized duplicate registrations on behalf of beneficiaries, improving the overall registration and selection process.

  • In FY 2023, USCIS received 483,927 H-1B registrations, including 165,180 registrations for beneficiaries with multiple entries.
  • In FY 2024, the number of registrations surged to 780,884, with 408,891 multiple registrations.
  • In FY 2025, USCIS received 479,953 H-1B registrations, with 47,314 instances of multiple registrations, significantly lower than the previous year.

Preparing for Filing Season

Employers should start preparing for the upcoming H-1B cap filing season by identifying potential candidates for H-1B classification, drafting job descriptions, and determining salary offerings. Taking these steps now will allow for a timely review of each candidate’s eligibility and ensure they are registered within the designated timeframe.

H-1B Modernization Rule

The H-1B Modernization Rule, implemented on Jan. 17, 2025, is still in effect. Introduced under the Biden Administration, the rule offers greater flexibility for employers and foreign workers by modernizing the criteria for specialty occupations, expanding the definition of nonprofit and government research organizations for H-1B cap exemption purposes, and extending the cap-gap period for F-1 visa holders. Even though one of President Donald Trump’s executive orders revoked 78 Biden executive orders, a reversal of this rule would require a formal rulemaking process because this rule was codified in the Code of Federal Regulations. A reversal of the H-1B Modernization Rule, if and when a formal rulemaking process is completed, would be expected to: (1) re-define specialty occupation; (2) increase wage requirements; (3) prioritize H-1B cap registration based on compensation levels; and (4) eliminate deference.

Jackson Lewis’ attorneys are available to assist in navigating the upcoming H-1B cap season and defining strategic options to sponsor foreign workers.