01/19/2025
IMMIGRATION DURING THE NEXT TRUMP PRESIDENCY
As an immigration attorney, I am asked on a regular basis what changes to expect under a second Trump Presidency. It is impossible to know what the exact changes will be until they occur, however, immigration was a central campaign issue during the 2024 Presidential election with President-elect Trump vowing to take strict action to restrict both lawful and unlawful immigration into the U.S. A central premise of Trump’s 2024 campaign is to “carry out the largest domestic deportation operation in American history” once in office.
Understanding your legal rights is the first step in having immigrants stay safe. If you are approached by immigration agents or law enforcement, it’s crucial to know how to respond:
Right to Remain Silent: You do not have to answer questions about your immigration status. You can remain silent.
Right to Refuse Entry: Immigration officers can only enter your home with a signed warrant from a judge. Always ask to see the warrant before letting anyone in.
Right to an Attorney: If you’re detained or facing deportation, you have the right to legal representation.
Immigration policies could change quickly under the second Trump administration, so it is important to stay informed about immigration policy changes. Watch for announcements regarding who is being targeted for deportation. President-elect Trump has promised to be far more aggressive in his second term, and Project 2025 contains more than 175 immigration actions.
POTENTIAL POLICY CHANGES
DACA. Elimination of Deferred Action for Childhood Arrivals (DACA) Program. President-elect Trump tried to eliminate DACA during his first term. Over half a million DACA recipients would lose protected status if DACA is eliminated. DACA was originally established by executive action in June 2012 to protect certain undocumented immigrants who were brought to the U.S. as children from removal proceedings and receive employment authorization for renewable two-year periods.
President-elect Trump tried to end DACA in his first term as President, but was blocked by the Supreme Court in 2020. The Biden administration issued regulations in 2022 to preserve DACA protections. However, in September 2023, a district court in Texas ruled the DACA program unlawful, preventing the Biden administration from implementing new regulations while the case awaits a decision in the Fifth Circuit Court of Appeals. Under pending court rulings, while the Department of Homeland Security (DHS) is accepting first-time DACA requests, it cannot process them. DHS is continuing to process DACA renewal requests and related requests for employment authorization. The Trump administration will likely try again to eliminate DACA protections, and, if the pending court ruling finds the program unlawful, the administration is unlikely to appeal the decision.
Public Charge Policy. President-elect Trump will likely reinstate changes to public charge policy that he made during his first term. Under longstanding immigration policy, federal officials can deny entry into the U.S. or adjustment to lawful permanent resident (LPR) status (i.e., a “green card”) to someone they determine to be a public charge. During his prior term, President-elect Trump issued regulations in 2019 that broadened the scope of programs that the federal government would consider for public charge determinations to include the use of non-cash assistance programs like Medicaid and the Children’s Health Insurance Program (CHIP). These changes were rescinded by the Biden administration as of 2023. Probable rule changes may prohibit a wider selection of benefits that will make a prospective immigrant ineligible.
Mass Deportations. President-elect Trump has stated that he will declare a national emergency and use the U.S. military to carry out mass deportations of tens of millions of undocumented immigrants residing in the U.S., many of whom have been living and working in the country for decades. Such a policy could lead to family separations as well as mass detentions. Workplace raids may also be part of Trump’s strategy for mass deportation efforts.
Ending Birthright Citizenship. President-elect Trump has stated that he will sign an executive order to end birthright citizenship for the children of some immigrants despite it being a guaranteed right under the U.S. Constitution. This proposed action would limit access to health coverage and care for the children of immigrants since they may not have lawful status. Any change will certainly be challenged in the courts.
Reinstatement of “Remain in Mexico” Policy. President-elect Trump has stated that he will reinstate the “Remain in Mexico” border policy and that he may use military spending to carry out stricter border enforcement, which would leave an increased number of asylum seekers. Under this policy, asylum seekers are required to remain in Mexico, often in unsafe conditions, while they await their immigration court hearings. The Biden administration ended this policy in 2022, although it implemented a series of increasingly restrictive limits on asylum eligibility in 2023 and 2024 in response to a high number of border encounters. President-elect Trump said he plans to reinstate the Migrant Protection Protocols. He also has indicated that he will deploy the National Guard, as well as active duty military personnel, if needed, to the U.S.-Mexico border, although details of the plan remain unclear.
Restrictions on Humanitarian Protections. President-elect Trump said he plans to significantly limit the entry of humanitarian migrants into the U.S. During his first term, President Trump set the annual refugee admissions ceiling at its lowest levels, ranging from 50,000 in 2017 to a historic low of 18,000 in 2020. The Biden administration increased the limit to 65,000 in 2021, and further increased the limits in 2022 and 2024 in response to humanitarian concerns. It is likely that President-elect Trump will reduce the limits and end the CBP One application created by the Biden administration which allows asylum seekers to seek lawful entry to the U.S. by making an interview appointment with the DHS. President-elect Trump also has indicated that he will roll back Temporary Protected Status (TPS) designations for some immigrants. TPS designations protect immigrants from countries deemed unsafe by the DHS from deportation and provide them with employment authorization but do not provide a pathway to long-term residency or citizenship.
H-1B Employers, H-1 Workers and H-4 Spouse EAD. There is an anticipated higher level of scrutiny on H-1B petitions which will result in a higher number of Requests for Evidence (RFE) and denials. The required wages for H-1B workers are likely to increase making it less likely U.S. employers will employ immigrants. Employment authorization for the H-4 Spouse may also be rescinded. The government may become more strict in evaluating the specialty occupation of the H-1B position and require more specific and clear justification of the specific field of study that is normally required for the position. Petitions for third-party worksites are likely to be required to provide more extensive documentation of the relationship between the employer and the H-1B worker, including contracts, statements of work/purchase orders, etc. for the entire requested H-1B term. The government may start issuing shorter H-1B approvals if the end client placement is not documented for the entire requested term. USCIS may start looking more closely at the position description and requirements, and whether an H-1B petition has properly categorized the wage level.
The second Trump administration may also decide to limit, or eliminate, the availability of the visa interview waiver (also known as “dropbox”) for many H-1B visa applicants. This will result in a much less predictable and significantly longer visa renewal process. The Department of State may also limit the availability of visa interviews for third-country nationals at third-country U.S. Consulates. All of this will increase the backlogs and result in long visa wait times.
L-1 Employers L-1 Workers and L-2 Spouses. The L-1 Intracompany Transfer program is also likely to see higher scrutiny, and especially the L-1B classification (employees with specialized knowledge). Higher scrutiny generally results in higher denial rates. During the first Trump administration there were higher rates of RFE and denials for L-1B petitions and often the reason was that USCIS did not find that the position met the definition of specialized knowledge.
The L-2 automatic work authorization rule may be rescinded which will then require L-2 spouses to file for a separate work authorization. The requirement to file an application for employment authorization will likely result in long processing times for a decision and increased costs.
Similar to the H-1B visa, the Department of State may also limit the availability of visa interviews for third-country nationals at third-country U.S. Consulates, resulting in increased backlogs and significantly longer visa wait times.
F-1 Student Visas. USCIS may become more aggressive towards CPT students, certain work authorization rules and unlawful presence. It is anticipated that there will be more scrutiny towards limits on STEM OPTs and more focus on ensuring compliance and maintaining F-1 status. In Trump’s first presidency, USCIS took a very aggressive stance against F-1 CPT users and especially those who would enroll in a degree program and immediately take CPT work authorization. There is nothing inherently wrong with CPT as long as all of the compliance steps have been taken, including having proper documentation of the training, taking the correct courses and attending school in person as required by the F-1 regulations.
Even though it survived a number of court challenges, the STEM OPT program is based on an administrative rule which means that the second Trump administration can follow the standard rulemaking process to rescind the entire STEM OPT program. USCIS may start scrutinizing more STEM OPT applications, and may also limit the automatic extension period for work authorization based on a timely-filed and pending STEM OPT. It is possible that certain restrictions may be reimposed on STEM OPTs – for example, limiting the ability to work at third-party worksites.
The first Trump administration sought to implement a rule which would immediately make an F-1 student unlawfully present upon violation of status. This rule was blocked in 2019 by court but it is possible that a new Trump administration may try again.
Green Card Applicants - Limits on Immigrant Visa Numbers. Trump has campaigned on limiting the overall numbers of immigrants, including through employment. One of the ways this can be done is by limiting the number of visas that are available every year or even in preventing immigrant petition applications such as I-140s for countries that are severely backlogged (such as India and China). These changes are likely going to require congressional approval but with Republican majorities in Congress, this may not be difficult to implement.
The second Trump administration is not likely to increase funding and staffing levels and this likely means that PERM Labor Certifications will continue to take longer times to adjudicate. Fewer I-485 interview waivers equals longer processing times. While interviews for marriage-based I-485 applications are still common, USCIS has largely waived the interviews for many other I-485 applications, including employment-based cases. It is likely that this policy will be reversed, requiring more I-485 interviews for a wider range of cases required in the future, causing significant delays.
Shorter EAD/AP Validity Terms. The current USCIS policy is to issue I-485-based EAD work permits and advance parole travel permits for 5-year periods. This may be reduced to 1- or 2-year terms under the new Trump administration, causing increased filing of applications resulting in longer wait times for decisions.
I-693 Medical Exam Validity Shortened. It is possible that USCIS will limit the validity of a medical exam which is required for most I-485 applications. Currently, medical exams signed after November 2023 do not expire. USCIS may reinstate validity restrictions which will require applicants to submit new I-693 medical exams, increasing costs to obtain updated medical exams.
Application for Naturalization to become a U.S. Citizen. Lawful permanent residents who are eligible to apply for naturalization may face more challenging vetting, including a harder civics exam. Green card holders who are eligible for naturalization should consider applying as soon as possible to qualify under the current testing requiremenbts. Green card holders who are spending extended periods of time abroad should understand the rules about spending time abroad and consider applying for a reentry permit to preserve their eligibility as permanent residents.
Increase in Compliance Oversight. Increased worksite audits and site visits to U.S. employers are expected which may include measures to enforce I-9 compliance, and visa compliance. It is anticipated there will be more strict interpretation and investigation by USCIS, and the Department of Labor (DOL) into wage levels, job descriptions, and recruitment efforts.
Travel and Border Issues. Reinstatement of previous travel bans based on nationality or ideological grounds are expected. Increase in resources for border security may result in stricter enforcement and deportation measures. Difficulty with visa issuance at Consulates/Embassies abroad is expected as well as at the border upon entry.
WHAT TO DO NOW
Be proactive in filing applications while the current rules exist. Consult with immigration counsel. For any specific questions or guidance related to the potential impacts or risk mitigation, please contact Paskoff & Tamber, LLP for assistance. Our law firm will continue to closely monitor developments as the new administration refines and implements its immigration platform.
Unfortunately, scams targeting immigrants can increase during times of uncertainty. Be cautious and avoid fraudulent services that promise quick fixes or guaranteed results. No one can promise you legal status or a quick solution.
While it is impossible to prepare for every scenario, you can prepare for the worst-case scenarios by taking the following steps:
Don’t panic. You may have legal options and even individuals in deportation proceedings have rights.
Work with a qualified immigration lawyer. Find an experienced and trustworthy immigration lawyer to assess your case and understand your legal options. Do not work with “notarios” and “immigration consultants”, unless they are authorized legal service providers.
Extend DACA and apply for Advance Parole. If you have DACA, file your extension as soon as possible, even if it expires more than 6 months from now. It’s better to get some extension now than no extension later. Additionally, apply for Advance Parole now, before the discretionary travel benefit is terminated. Travel on Advance Parole may later help you apply for a green card, but consult with your immigration lawyer before traveling abroad.
Extend TPS and apply for TPS Travel Document. If you have Temporary Protected Status (TPS) and are eligible to extend it, file your extension as soon as possible. Additionally, apply for a TPS travel document as soon as possible. Travel on a TPS travel document may later help you apply for a green card, but consult with your immigration lawyer before traveling abroad.
For Ukrainians, if you have Uniting for Ukraine (U4U), also apply for Temporary Protected Status (TPS). TPS is significantly harder to cancel than U4U because TPS is based on regulations, whereas U4U is based on an executive order of the President.
File H-1B petitions H-4, and L-1 applications as early as possible under the current rules. H-1B extensions can be filed six months prior to expiration; however, if a petition is to be amended, an H-1B amendment petition can be filed immediately with a request to extend. When possible, file and bundle H-1B petitions with H-4 and H-4 EAD applications. Consider using premium processing to obtain a faster decision.
If you are eligible for naturalization, apply for naturalization now before requirements and processing times change. Most permanent residents have to wait 5 years before they may be eligible for naturalization, but spouses of U.S. citizens and members of the U.S. military can apply sooner.
Apply for other immigration benefits for which you are eligible, such as a waiver, green card, etc. Apply as soon as possible before the process takes longer and becomes more difficult and more expensive.
Obtain original identity documents. Immigrants and their immediate family members should obtain identify documents, including birth certificates, adoption records, marriage certificates, divorce decrees, consular identifications, etc. For foreign documents, you may need to contact your country’s consulate. These will be necessary in the event of any immigration case and may take too long to get when you need them.
Obtain criminal records. The U.S. government will know if you have been arrested in the past. Any immigrant with a criminal record should get certified final court dispositions for any and all arrests and conviction, including expunged arrests and convictions, both in the United States and in any foreign country.
Obtain copies of all prior U.S. immigration records. If you have ever had any contact with any immigration authorities, you should obtain copies of all of your records and may need to file a Freedom of Information Act (FOIA) request with the appropriate government agency to obtain a copy of your records. Since immigration involves multiple different government agencies, different FOIAs may be necessary depending on the type of contact you previously had with immigration authorities.
If you are undocumented, carry evidence of being in the U.S. for at least 2 years. Individuals who can show proof of being physically in the U.S. for at least 2-years are not subject to expedited removal.
Obey traffic and criminal laws. Both documented and undocumented immigrants risk immigration action in response to violations of traffic and criminal laws.
Apply for a Driver’s License, if eligible. Having a Driver’s License prevents additional scrutiny in the event of a traffic stop.
Carry ID and evidence of status or pending immigration applications. All immigrants who are not yet U.S. citizens, including green card holders, should carry evidence of their status or pending immigration applications in the event of any interactions with immigration officials.
Undocumented immigrants should avoid travel to areas within 100 miles of the border and to U.S. territories. ICE has jurisdiction to conduct random checkpoints within 100 miles of the border and there is increased immigration presence on U.S. territories, like Puerto Rico and the U.S. Virgin Islands. Additionally, travel to U.S. territories carries the risk of an unscheduled stop (e.g. due to weather or to refuel) on another island that is not a part of the U.S., requiring you to go through customs upon re-entering the U.S.
Make a safety plan in the event that you get caught up in immigration enforcement. Identify an emergency contact and memorize their phone number. Make sure they know who your immigration lawyer is and how to contact them. Provide your child’s school or daycare an emergency contact and authorize them to pick up your child. Authorize the emergency contact to make medical and legal decisions about your child. Keep passports, proof of your physical presence in the U.S., and financial information in a safe place, authorizing your emergency contact to access them if needed.
Employers can take the following practical steps:
Review and update I-9 forms and public inspection files to ensure your documentation is up-to-date and in compliance in the event of any future audits or investigations.
Foreign national employees may be impacted by a travel ban or visa issuance complications at Consulates/Embassies abroad. Avoiding unnecessary travel after January 20, 2025, may be advisable particularly for those who were impacted by the initial travel ban as it may go into effect quickly, and without warning.
Prevailing wage requests should be prioritized to avoid policy changes or prevailing wage calculations.
President-elect Trump cannot accomplish his immigration agenda without violating the Constitution and existing federal laws. Immigration litigation will be a critical component of the response to the expected changes in immigration policy.
The experience from the previous Trump years underlines the practical importance of legal action. Lawsuits stopped many illegal Trump administration policies, including those that aimed to separate families at the border, arbitrarily cut off access to asylum, strip hundreds of thousands of people of protection under Temporary Protected Status (TPS), and Deferred Action for Childhood Arrivals (DACA), add a citizenship question to the Census to chill participation by immigrant and mixed-status families, and prevent abortion access for unaccompanied immigrant minors. Please let us know if you would like to discuss how to best protect your legal rights.
