How the Trump Administration May Change our Practice of US Visa and Nationality law

As the Trump administration is readying to enter the White House for a second time, as US visa and nationality lawyers we are preparing for the chaos experienced in the first Trump administration and so must prognosticate based on our experience and the proposed policies from the Heritage Foundations 2023 Project 2025. In the last Trump administration, 64% of the policies the Heritage Foundation called for were implemented in Trump’s first year in office. Therefore, we need to refer to that but also the Biden administration has been publishing rulessuch as extending country approvals for Temporary Protected Status and the H-1B final rule. To be clear, the discussion below is not law or current policy but is a discussion of what may be put into place after Trump is sworn in on January 20, 2025.

The Heritage Foundation’s Project 2025 920 page tome published in April 2023 entitled “Mandate for Leadership: The Conservative Promise”, referred below as the “Mandate”, proposes a blueprint for the second Trump administration’s policies that involves enhancing federal government authority, reducing state power, and bypassing Congress and the courts. Goals include a reduction in legal immigration by deconstructing the current immigration system, terminating legal status for Dreamers, and limiting certain categories of legal immigration. The Mandate for Leadership outline a plan to overhaul federal policy areas and restrict legal immigration through functional limitations.

In particular, and what is of most interest to Flynn Hodkinson and our clients are the immigration policies that may be implemented once Trump is inaugurated on January 20, 2025 directly affect our clients For a concise summary of the Mandate’s plan to demolish US immigration see this link. There is much in the Mandate that is reprehensible to us as US immigration lawyers but that may not necessarily affect our clients so we are focusing on the Mandate’s policies affecting the types of advice and worker our firm provides which includes:

• Corporate clients who need executive, managerial and skilled employees in the US via nonimmigrant visa such as E-1/E-2, H-1B, L-1, O-1 and immigrant visas under the EB-1-A and C and EB-2 including NIW, advanced degree workers and EB-3 with two years’ experience to bachelor’s degree workers immigrant visa categories and their families.
• Investors and Traders who will invest in the set up a US business or are engaging in substantial international trade with US customers and their spouses and children under the age of 21.
• Family-based clients who are US citizens and Lawful Permanent Residents who wish to live in the United States with their foreign spouses and minor children under the age of 21.
• Those who require US visitor visas because they are ineligible to travel under the Visa Waiver Program.
• Lawful Permanent Residents who require advice on long-term absences from the United States, renewing their green cards or applying for naturalization.
• US citizens who require advice and assistance with the loss of their US citizenship via renunciation

Reduction of Legal Immigration & Increasing the Cost of Legal Immigration:

The Mandate proposes halting legal immigration, including high-skilled and temporary employment, family reunification, and humanitarian protection. This could lead to a decrease in the number of clients seeking assistance with these types of visas, affecting law firms specializing in these areas.

The Mandate includes increasing application fees and restricting fee waivers, which could make immigration services less accessible to clients, particularly those seeking family-based immigration services. Although, individuals and employers are already feeling the effects of employment based benefit fee in the Biden administration, after a regulatory review and Office of Management and Budget fee analysis, increased USCIS filing fees in April 2024.

Changes to Work Authorization:

Clients possibly affected: Adjustment of Status applicants and E and L Spouses.

The Mandate calls for limiting the classes of foreign nationals who may apply for a work authorization. Work Authorization refers to an immigration benefit that allows someone to work in the US separate to their visa status within the US. The most common situations of this may be for those who are applying for Lawful Permanent Resident (“LPR”) status through Adjustment of Status via a family or employment-based immigrant visa category. These applicants must apply for a separate document called an Employment Authorization Document or “EAD” which upon issuance will allow the applicant to legally work in the US.

What is not clear is whether these limitations will apply to spouses of L-1 and E visas who previously were required to apply for and be issued an EAD to be able to work in the US but the US Citizenship and Immigration Services (USCIS) on November 21, 2021 announced a policy that E and L spouses will have work authorization based on their E or L Spouse status. The US Department of Homeland Security (DHS) then issued Class of Admission codes for E and L spouses: E-1S, E-2S, E-3S and L-2S to be reflected on their I-94 Record of Entry. The question remains how easily can the Trump administration remove this policy of work authorization incident to status for E and L spouses? While US Customs and Border Protection has ensuring that E and L spouses are entered under the correct visa classification code, we must continue to warn our clients to check their status upon to avoid delays when an E or L spouse may work in the US, apply for a Social Security Number or Driving License, all of which require the demonstration of work authorization.

Pausing the Receipt of Petitions and Applications when a Backlog is Deemed “Excessive”

Clients or Cases Possibly affected: All nonimmigrant extension of stay petitions; LPRs applying to renew their green card; family-based Adjustment of Status applicants or work authorization renewals

 Project 2025 calls for the pausing of receipting of petitions and applications filed with the USCIS if the backlog is deemed as “excessive.” The practical effect of this proposed policy, if implemented, is that if petitions and applications cannot be filed for those whose status is expiring, they will fall out of status and will be required to leave the country or, if the foreign national remains in the US, accrue unlawful presence which if they accumulate more than 180 or 365 days can result in a bar to US entry upon leaving the US for three and 10 years respectively.

Creating Delays via FDNS Checks Prior to USCIS Petition or Application Approval

Built in the Mandate is a proposal that will likely guarantee “excessive backlogs” if additional Fraud Prevention and Detection and National Security Directorate (“FDNS”) checks prior to the adjudication of all petitions and applications. Currently, the USCIS will request FDNS review only in situation where there is suspected fraud. The FDNS simply is not geared up for this and this policy will quickly create backlogs as the FDNS between the fiscal years of 2016 and 2021 completed fewer than 35,000 cases in any single year where the USCIS adjudicates 8.6 million applications, petitions and requests each year.

Therefore, it is advisable to file an application or petition to extend status well in advance of the expiry of the nonimmigrant’s visa status. For most types of cases, the earliest a petition or application may be filed is six months in advance of the expiry of the visa status. We note that many nonimmigrant visa status extensions with the exception of H and L visa status, require the foreign national to remain in the US while their application or petition is pending if they are requesting a change or extension of stay. Departure from the US will result in the abandonment of the petition or application.

Immediate Removals for Those Whose Petitions or Applications Are Denied or Rejected Upon Filing with USCIS

Clients Affected: All clients who must file a petition or visa application for nonimmigrant, immigrant, LPR card renewals or naturalization applicants.

The Mandate on page 146 calls for the immediate departure of a person whose petition or application is rejected when the USCIS rejects the petition or application, at least until USCIS has cleared all case backlogs. The terms “rejected” and “denied” are combined and can have disastrous affects on many of our clients. It also ignores the fact that a person may be applying for a US visa benefit even when they have an underlining legal nonimmigrant visa status such as employment or family-based Adjust of Status applicants. Based on our experience, a petition or application which is reviewed by contract mailroom staff could be rejected in error so we must be prepared to deal with these rejections and ensure that we file all petitions or extensions of stay well before the expiry date.

It is not clear how this will work in practice but the law as it stands now is that someone who remains in the US beyond when they are authorized for more than six or 12 months will be inadmissible for three or 10 years respectively. Given that Immigration and Customs and Enforcement will be on overdrive removing those in the US without legal status, it is not clear how this will be enforced. In addition, if a petition or application is filed and rejected due to circumstance beyond the beneficiary or applicant’s control, it may be able to request that the USCIS accept a late filing of a petition or application resulting in a loss of legal status under nunc pro tunc. Not being able to file a petition or application due to USCIS backlogs as being a reason beyond the visa beneficiary’s control. It is one example how things may remain the same in terms of the advice we provide but our practices in when petitions or applications are filed will be changing. Our estimate is that, for example, we will require employers to petition to extend an employee’s status as soon as possible and to never wait until on or before the expiry date to file the extension petition.

H-1B Specialty Occupation for Recent Graduates

The H-1B Specialty Occupation visa has done more to drive the US economy allowing university graduates who will work in US jobs that require a bachelor’s degree or higher in a specialized field. To protect US workers and ensure that foreign workers are not being brought in to be paid less than their US counterparts, the US Department of Labor rules require that H-1B employers certify that the H-1B will be paid at least 100% of the prevailing wage for the job classification. The US DOL wage date currently includes four levels. The Mandateon page 167 calls for the elimination of the first two wage levels which incorporate new graduate salaries. This will in effect block the H-1B visa for new graduates as the wage levels are based on the education and experience of the worker. The attack on the H-1B visa remains to be seen after a recent contentious discussion of the H-1B category between Trump, tech CEOs including Elon Musk and Trump’s MAGA followers.

The Mandate on page 150 also calls for the reform of the H-1B visa category to an “elite mechanism” to bring only the “best and brightest at the highest wages” which will likely effect the adjudication of H-1B petitions that require that the employee will work in a “professional specialty occupation”.

The Biden administration published a new H-1B final rule, effective on January 17, 2025 to presumably anticipate the Mandate’s proposed policy changes to give more concrete guidance for employers for H-1B workers and those currently in F-1 Student status.

“Recalcitrant” Countries Restriction on Visa Eligibility

The Mandate on pages 167 and 177 calls for the suspension of visas for those from  countries who are recalcitrant or uncooperative regarding the receipt of deported nationals from those countries, which, as of June 2020 including 13 countries which include some countries that have highest levels of temporary and permanent visa applicants: China, Russia, India, Cuba, and Eritrea. As a US visa and nationality law practice based in London, UK where many individuals are dual nationals, this will certainly affect many of our clients. Therefore, we must ensure we know all the nationalities a client holds when assisting with a visa application as it is not clear which country a dual national will be deported to if, for example, a person permanently resides in the UK or Europe but is a national of a “recalcitrant” country.

Privacy and Data Sharing:

The Mandate emphasizes increased data sharing and reduced privacy protections, which could raise concerns for clients, especially our clients based in the UK and Europe where privacy is a priority under GDPR, about the confidentiality of their immigration status and personal information.

This is posting is for informational purposes and is not intended as legal advice. If you require further assistance or advice relating to the above, If you require further assistance or advice relating to the above, please contact our Principal Lawyer, Janice Flynn at janice@flynnhodkinson.com.