Elections Have Consequences: Predicting and Preparing for US Immigration Changes

Angelo A. Paparelli, Manish Daftari, My 2024

"As federal and state elections in November 2024 draw near, mobility leaders face the prospect of major policy and programmatic changes to US immigration programs and requirements. The focus of any new laws or executive actions (that is, the degree to which they will reflect hostility to, or a welcoming of, noncitizen workers) predictably depends on which candidates and political parties prevail in November.

Much will depend upon whether one party takes control of both the presidency and Congress, or whether the status quo (i.e., divided control of the legislative and executive branches and de facto stalemate) persists.

Mobility leaders must therefore be prepared for any eventuality. No matter the outcome in November, however, they should still expect that the US immigration system will continue to entail greater legal and procedural complexity, higher filing fees, and lengthier processing times, notwithstanding the start of fledgling federal efforts to introduce more online and automated services.

A. Single party control of the White House and Congress

If one political party gains control of the presidency and both houses of Congress, the enactment of a comprehensive immigration reform act, or the passage of multiple special-purpose immigration-related statutes, is likely.

Despite the recent failure to enact bipartisan legislation that would have dramatically enhanced US border enforcement and limited presidential authority to act unilaterally over immigration, the underlying economic and political pressures motivating undocumented noncitizens to attempt illegal border crossings persist. As a result, enhanced border enforcement will likely remain a key legislative priority no matter who wins in November.

Less clear, however, is whether more employer-friendly reforms of the legal immigration system can be expected.

i. Congressional and White House control by the Democrats

If President Biden is reelected and the Democrats take control of Congress, new immigration laws might include:

• New legal immigration options and possible pathways to US residency and citizenship for Deferred Action for Childhood Arrivals (DACA) beneficiaries, adult children of work-visa holders, and agricultural and health-care workers.
• Increased work visa and green card pathways for noncitizen STEM workers, especially for individuals with expertise in AI or critical or emerging technologies.
• Elimination of per-country caps on immigrant visas.
  • While this would benefit persons born in India, China and other visa-backlog countries, it might mean delayed grants of US green cards to other noncitizens, unless Congress increases the overall annual visa quota.
• Recapture of unused prior years’ immigrant visas.
• Increased H-1B visa numbers, coupled with enhanced worksite enforcement of labor and employment laws, greater noncitizen job portability, longer grace periods for laid-off noncitizen workers, and more whistleblower protections.
• The grant of legal status (earned legalization) to undocumented noncitizens present in the United States as of a given date who pay taxes owed and a substantial fine, particularly the parents of US citizens and permanent residents, perhaps coupled with a path to permanent residency and US citizenship.

Overall, under a Democratic administration, we can expect a continued focus on reducing extreme USCIS backlogs, reduce visa processing times at USCIS and the US Consulates abroad, and provide greater flexibility to USCIS to approve work visa and permanent residency applications for individuals working in AI, technology and health related industries. The administration will also focus on reducing fraud in the H-1B cap registration program, as well as continue overseeing worksite enforcement. Immigration enforcement will likely complement the administration’s policy initiatives to reduce processing times and ensure companies are able to hire professional foreign workers.  As we will see below, immigration enforcement will play a more central role in a Republican-led government.

ii. Congressional and White House control by the Republicans

If former President Trump returns to the White House, and the GOP gains control of Congress, then the contours of likely new legislation have already been mapped out. They are outlined in “Mandate for Leadership: The Conservative Promise,” proposed by Project 2025, the Presidential Transition Project (PTP), an initiative comprised of several former senior Trump administration officials, in coordination with America First Legal Foundation, led by Stephen Miller.

PTP’s legislative recommendations to the GOP include:

• A restructuring and slimming down of the US Department of Homeland Security (DHS) that would combine and transfer from DHS several existing agencies and components—US Customs and Border Protection (CBP), US Immigration and Customs Enforcement (ICE), US Citizenship and Immigration Services (USCIS), the Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR), and the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) and Office of Immigration Litigation (OIL)—into a standalone border and immigration agency at the cabinet level.
• Formal legal recognition of the Fraud Detection and National Security Directorate (FDNS) of USCIS and the grant to FDNS of effective veto power over employment-based and family-based petitions and applications requesting immigration benefits.
• A redirection of the focus of USCIS from a benefits-granting immigration agency to a “vetting” agency that screens out (i.e., is inclined to deny) petitions and applications deemed unworthy, or ones seen as posing a threat to national security or public safety.
• Classification of USCIS as a “national security–sensitive agency,” and a requirement that its employees should be classified as holding “national security–sensitive positions.” This mandate would be coupled with a requirement that “USCIS’s D.C. personnel presence should be skeletal,” and agency employees with “operational or security roles should be rotated out to offices throughout the United States.”
  • If these measures are enacted, then USCIS personnel would apparently be required to obtain individual security clearances and officers residing in Washington must relocate elsewhere or resign. The foreseeable result will be staffing challenges and processing delays.
• New limits on the H-1B visa category: (1) transforming it into an elite mechanism exclusively to bring in the “best and brightest” at the highest wages, (2) ensuring that US workers are not disadvantaged by the program, and (3) treating it as a supplement to the US economy that helps keep companies competitive, and not a way to depress US labor markets artificially in certain industries.
  • Research studies have produced indecisive or contradictory conclusions on whether the employment of H-1B workers may tend to depress US labor markets in certain industries.
  • Still, the GOP will likely seek to reinstate a Trump Administration DOL rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” Although this regulation never went into effect, it would have significantly raised the prevailing wages required to sponsor workers in the H-1B and certain other temporary visa categories, as well as in PERM labor certification cases.
• Additional anti-fraud and procedural requirements for other temporary work visa programs, along with enhanced civil and criminal immigration enforcement authorities and mandates (including suspension and debarment from participation in federal contracts) for implementation by the DOJ and other immigration enforcement agencies, with particular focus on “unscrupulous immigration attorneys” and law-flouting employers.
  • This authorization envisions “aggressive enforcement of the immigration laws within the Immigrant and Employee Rights Section of the Civil Rights Division to ensure that no American citizen is discriminated against in the employment context in favor of a temporary or foreign worker.”
  • Although not part of the PTP plan, former President Trump has said through a spokesman that he intends to “marshal every federal and state power necessary to institute the largest deportation operation in American history,” an initiative that would “face a bottleneck in detention space—a problem that Trump adviser Stephen Miller and other allies have proposed addressing by building mass deportation camps.”  This effort would apparently be far more aggressive than the ICE collateral arrest program depicted in the Netflix documentary series, Immigration Nation, where noncitizens with no criminal records who were encountered in the course of ICE sweeps for criminals and previously deported individuals were reportedly detained and placed in removal proceedings.
• Repeal of Temporary Protected Status (TPS) designations, and of T (trafficking) and U (crime victim) visa categories.
• Permanent authorization of E-Verify and a requirement that it become mandatory for all employers (with a likely phase-in period based on employer size).
• Restoration of the Trump Administration’s public charge regulation which required submission to USCIS of Form I-944, Declaration of Self-Sufficiency, with applications seeking to adjust to green card status—a rule rescinded by the Biden Administration.
• New constraints on presidential power to authorize entry of individuals and groups under the parole authority.
• New limits on the grant of employment authorization by federal immigration officials, and reduction of the classes of noncitizens eligible work permits.
• Authorization of state and local law enforcement participation in immigration and border security actions, and elimination of municipal authority to act as so-called “sanctuary cities.”
• Elimination or significant reduction in the number of visas issued to foreign students from “enemy nations”—without naming any countries as such.
  • This could be coupled with a possible restoration of some form of the Trump Administration’s travel ban that mostly affected citizens from Muslim countries, a ban which, in its third iteration the Supreme Court ultimately allowed, and President Biden rescinded on his first day in office.
• Enhanced limits on and scrutiny of “national security-vulnerable visa programs,” including the Diversity Lottery immigrant visa program, the F-1 (student), and J-1 (exchange visitor) visa programs.
• The creation of a merit-based immigration system that awards visas only to the “best and brightest,” and focuses on the nuclear family, while ending “chain migration.”
• Cessation of Deferred Action for Childhood Arrivals (DACA) processing:  While the Mandate for Leadership does not explicitly call for the termination of DACA, it does recommend that USCIS cease processing work authorization applications based on DACA.  Over 500,000 young adults are protected by DACA and receive work authorization through this program.  Without staff to process applications and renewals, these individuals will not obtain or renew their legal protection or work authorization.

Overall, the policies of a Republican administration will emphasize immigration enforcement and protection of the US labor market. These policies will likely lead to a significant backlog in cases and an increase in USCIS and US Consulate processing times, similar to or possibly worse than what we saw from initiatives implemented during the Trump administration. We may also see an increase in Requests for Evidence and visa application denials by USCIS, especially for H-1B and L-1 applications. If the Trump administration implements the policies to protect the U.S. labor market, including raising the prevailing wages, it will also likely discourage many companies from hiring professional foreign workers in the United States.

B. Divided control → Executive Orders and administrative agency actions → tempered by the threat of civil litigation

If the November elections result in a continuation of the status quo, namely, a divided and stalemated Congress, then mobility leaders should anticipate that the present US practice of bringing about immigration changes solely through executive action will continue, irrespective of which presidential candidate is elected. Additional changes will likely arise, as they do now, through the publication of regulations issued under the Administrative Procedure Act, and the issuance of “sub-regulatory” agency policy guidance and policy manual updates.

While many of the foreseeable changes listed above require legislation, some may nonetheless be attainable, in theory, through presidential and administrative agency—albeit with the risk that such non-legislative efforts might ultimately be overturned in the federal courts.

If former President Donald Trump is reelected, mobility leaders should anticipate disruptions to the smooth and efficient functioning of a legal immigration system that should operate in a way that is responsive to the needs of US-based companies and the American economy. His political appointees would likely serve an oversight and policing role to assure that career officials adhere as much as legally possible to President Trump’s directions under the current immigration administrative structure of DHS, the State Department and the Department of Labor (DOL).

If President Biden wins a second term, mobility leaders will likely see a continued focus on rulemaking, policy guidance, policy manual updates, and similar sub-regulatory measures.  These would likely include:

• The promulgation by DOL of an expanded listing of Schedule A shortage occupations (which avoid the PERM labor certification recruitment process) in STEM and non-STEM positions.
• A more robust stateside work visa reissuance program and greater availability of the J-1 visa category for researchers (including in commercial applied research fields) and entry-level AI students, and from the State Department, especially for workers with advanced STEM skills, AI, and critical and emerging technologies, as well as a reevaluation of the J-1 Skills List to take into account US interests (thereby lessening the adverse effect of the two-year, home-country physical-presence rule).
• USCIS’s modernization of its adjustment of status regulations, and its expansion of eligibility criteria for employment-based benefits, and possibly, reductions in case processing times as online filing and automation programs improve.

Federal litigation challenges and court rulings, however, have blocked many immigration-related executive actions. This pattern will likely also persist no matter the outcome of November’s elections.

C. What you can do now: How companies can prepare for potential immigration impacts if there is a change in administration

As this article has shown, the biggest changes in the immigration landscape will likely occur if a GOP-controlled government wins a congressional majority and the presidency, or if there is a divided congress and former president Trump is reelected.  A second Trump presidency will likely lead to a flurry of executive orders and the adoption of new restrictions that will steer immigration policy towards enforcement and aim to reduce legal immigration.  These  changes will likely happen within the first six to eight months, as occurred  in the first Trump administration.

Companies may want to consider preparing preliminary strategies in case a new administration takes command. First, companies may want to identify the population of employees that may be impacted by a change in administration.  This will likely include the following:

• Employees who may be impacted by a future visa and entry bans.  Based on the previous bans, these countries will likely include Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.  The list might also include Palestinians from Gaza and the West Bank, which may be added to the list.
• Employees who are on TPS status
• Employees who are on DACA status
• Employees who are on H or L status and have visa stamps that will be expiring within a year

Companies should collaborate with their counsel to assess each individual’s situation and determine if there should be any proactive communications and steps that can be taken in anticipation of an administration change.  For example, companies may want to start the permanent residency process for potentially impacted employees, if they have not done so already.  Additionally, companies may want to advise their employees about the importance of planning travel months in advance or applying for their visa stamps before the change in administration.

While we are still months away from the presidential elections, it is very clear that immigration policy will look substantively different, depending on which candidate and which party controls the federal government in 2025.  In the meantime, while we wait for the results of the election in November, companies are strongly encouraged to work closely with their immigration counsel and prepare contingency plans for employees in the event a change in administration takes place."