With U.S. Elections Completed, Mobility Leaders Must Act Now

Angelo A. Paparelli, Nov. 7, 2024

"The voters have spoken. President-elect Donald Trump is heading back to the White House and majority GOP-control in the Senate has been secured (but House control remains uncertain). Mobility professionals should therefore take immediate proactive measures in the runup to January 20. The steps suggested below, we believe, will demonstrate to the company’s leaders and to its noncitizen workers that effective strategies are in place to deal with the uncertain future that lies ahead:

• Inventory your population to confirm each noncitizen worker’s current immigration status, type of U.S. work authorization, country of origin, countries of recent travel, and their current location if outside the United States. Even green card holders may be at risk of being temporarily stranded abroad if new and likely enhanced travel bans are announced without forewarning.
• Consider announcing one or both of the following:

An optional “return to the U.S. promptly” policy informing affected noncitizens that their career progression will not be impaired if in consultation with their manager, they determine that they should return to the U.S. before the incoming administration is positioned to announce new travel bans, and/or

A recommendation that there be a moratorium temporarily restricting departures from the U.S. (with appropriate exceptions for business exigencies, personal considerations, and the comparative risk profile of each individual based on likelihood of future re-admission to the U.S.) if and when a travel ban affecting distinct categories of employees is announced.

• Consider developing a bespoke corporate communications strategy that includes:

A dedicated internal communications channel (or channels) to announce alerts and corporate policies and strategies relating to any new immigration-related White House or Congressional developments of importance or concern to management and to affected noncitizens, and

A variety of forms of personal support to noncitizen workers to help them deal with the challenges ahead and reassure them that the company will provide ongoing information and assistance in the form of open houses, office hours, one-on-one consultations, and other suitable help.

• Determine what types of support to noncitizens and their family members the company is prepared to provide. This could range from assistance with spousal work authorizations to support for the individual if resort to federal court is necessary.
• Assess vulnerable populations at risk of losing work permission or legal status in the U.S., including:

Holders of Temporary Protected Status (TPS), or Deferred Action for Childhood Arrivals (DACA) status, and persons granted “parole” status and the right to work by the Biden Administration, i.e., citizens of Ukraine, Afghanistan, Venezuela, Cuba, Nicaragua, and Haiti.

Individuals who applied for (a) benefits under the June 18, 2024 Biden executive action “Keeping Families Together,” which allowed for parole in place for noncitizen spouses and children of U.S. citizens residing in the U.S. for at least 10 years, and (b) waivers of visa ineligibility and inadmissibility to DACA holders and certain graduates of U.S. colleges and universities.

H-4 spouses with work authorization (EADs)

• Prepare to initiate recruitment to replace any workers among the above vulnerable populations who may soon no longer be authorized for employment.
• Prepare your teams to expect a flurry of already-drafted, immigration-related executive actions to be published soon after January 20, 2025.
• Assess the level of the company’s immigration compliance and take prompt corrective measures if compliance lapses are identified. These would include the review of Form I-9/E-Verify policies and practices; the company’s satisfaction of Labor Department H-1B labor condition application regulations; its recruiting, hiring or employment practices that may be seen to favor noncitizens and discriminate against protected U.S. workers (citizens, green card holders, refugees and asylees); and the accuracy of evidence previously submitted in support of employment-based work visa and green card petitions.
• Expect a beefed-up investigative and enforcement role for the Justice Department’s Immigrant and Employee Rights (IER) unit and greater influence exerted by the USCIS’s Fraud Detection and National Security (FDNS) through more employer site visits, visits to noncitizens’ residences, and FDNS review of new and previously filed employer-sponsored immigration petitions and applications.
• Expect more delays, requests for additional evidence (RFEs), notices of intent to revoke (NOIRs) previously approved petitions and underlying work status, and denials of newly-filed employer-sponsored petitions and applications. Some of these may be caused by current immigration adjudicators taking early retirement, and by heightened, time-consuming security-clearance requirements for adjudicators.
• Anticipate the elimination of the current USCIS policy granting deference to previous work-visa approvals where the job duties and location are unchanged; instead, expect that every request for extension or amendment of work status must be supported by convincing new evidence of eligibility.
• Anticipate the elimination of USCIS’s adjustment of status interview-waiver policy and more in-person employment-based green card interviews at USCIS field offices for your noncitizen workers and their families.
• Expect delays in scheduling consular visa appointments caused by turnover of officers at U.S. embassies and consulates, more requests for national interest exemptions under the new and likely enhanced travel bans, and greater cases delayed by national-security vetting (known as “administrative processing”).
• Expect increased restrictions and requirements for H-1B workers, and enhanced scrutiny of F-1 students and J-1 visitors because these are likely to be seen as national-security-sensitive categories.
• Expect and allocate budget for significantly higher prevailing wages payable to H-1B, E-3 and H-1B1 workers and employees sponsored for green cards under the PERM labor certification program.
• Estimate and propose additional budget allocations for the increased expenditures that the business may incur because of any newly announced federal immigration policies.

The anticipated immigration changes from the coming administration, while adding new burdens and responsibilities, nonetheless offer mobility leaders an opportunity to demonstrate to their leaders and foreign workers through thoughtful programmatic changes and compassionate support that you are there for them no matter the challenges and obstacles which may lie ahead."