Business Immigration in Trump’s Second Term: What to Expect in the Next Four Years

In the week following Donald Trump’s election, news channels reported his plans for mass detentions and deportations, but the implications of his second term on business immigration remain less certain. Drawing from his first presidency, campaign commitments, and statements from advisers, we can expect dramatic restrictions affecting all areas of employment-based immigration, including those affecting high-skilled workers, entrepreneurs, and STEM professionals.

Reports from The Wall Street Journal reveal that Trump’s allies have already prepared policies aimed at curtailing many forms of legal immigration. According to the article, “Ideas being explored include a pause in accepting new applications for categories of immigration that currently have large backlogs. They range from asylum to requests for employment-based green cards for Indian technology workers, leaving those immigrants out of legal options.”

We compiled a list of what can be expected for employment-based immigration, and in particular, how it will affect high-skilled and “extraordinary-ability” individuals. 

What to Expect Under the Trump Administration

• Increased scrutiny of both non-immigrant and immigrant petitions: Including petitions for H-1B, L-1, O-1, EB-1, and National Interest Waiver (NIW). 
  
  
• Pausing applications: Particularly in categories with significant backlogs, such as employment-based green cards for Indian nationals.
  
  
• Heightened barriers for entrepreneurs and STEM professionals: Repealing favorable Biden-era policies. This is likely to include Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, which previously led to more favorable NIW adjudications for STEM graduates and entrepreneurs.
  
  
• Increased Requests for Evidence (RFEs) and Denials: Stricter interpretations of eligibility could result in higher denial rates. In 2017, Trump rescinded the "Defence Memo” which instructs USCIS to give deference to prior approvals when adjudicating extensions or amendment petitions. Although reinstated by Biden in 2021, Trump is likely to rescind the memo again, leading to increased scrutiny for standard extensions and amendments.
  
  
• Longer Processing Times: DHS funding shifts and policy changes may exacerbate already lengthy processing times. Although premium processing service was extended to certain EB-1 petitions and EB-2 NIWs in 2023, there is a chance that Trump will put a pause on premium processing for certain categories, leading to significant delays. 
  
  
• Travel Restrictions: Based on Trump’s previous presidency, new travel bans targeting specific countries or visa holders are likely to resurface. Such restrictions could further limit mobility for foreign professionals and applicants.
  
  
• Employment-Based Green Card Adjustment of Status Interviews: Interviews may serve as the final step in the Adjustment of Status process for employment-based green cards. Ensuring you have all required documentation, a clean tax history, and no criminal record can help streamline the process.
  
  
• End of H-4 EADs: Work authorization for spouses of H-1B visa holders will likely come to an end under Trump’s second term. 
  
  
• Impact on Foreign Students: The Trump administration previously proposed policies restricting F-1 student benefits like STEM OPT and CPT work authorization, creating uncertainty for international students and potentially deterring foreign talent. 

While much remains beyond our control, immigration attorneys and their clients have navigated these challenges before. Here are some steps to consider in preparing for the upcoming changes.

Preparing for Upcoming Changes

1. File Early and Strategically

Within the first week of Trump taking office on January 20, 2025, we can anticipate executive orders that will lead to restrictive policies on immigration. With these changes underway, timely filings are critical. Encourage clients to submit petitions as early as possible to avoid delays caused by shifting priorities or processing backlogs.

2. Strengthen Existing Petitions 

Prepare for stricter adjudications by submitting robust evidence, support letters, and legal briefs. Anticipate RFEs by addressing potential eligibility concerns upfront.

3. Leverage Alternative Visa Options

In the face of restrictions and uncertainty, employers and individual clients will want to explore alternative pathways. With PERM applications taking up to 15 months, clients have already been looking for alternatives. With such long processing times for “traditional” employment-based green card paths coupled with anticipated restrictions, uncertainty and fear, it will be even more crucial to prepare for alternative options to permanent residency. Attorneys should also consider non-immigrant visa alternatives with potential H-1B wage level cutoffs and increased RFE and denial rates. 

4. Anticipate Travel Delays 

Attorneys should advise clients to anticipate longer wait times and disruptions in travel plans. These delays could be caused by slower processing at U.S. consulates, increased administrative processing, renewed “travel ban” for nationals of certain countries, and restrictions for certain visa holders. 

Closing Thoughts

Trump’s return to the White House will likely lead to immigration policies that restrict legal immigration pathways including for high-skilled workers, entrepreneurs, and STEM workers. For attorneys and their clients, the challenges include increased scrutiny on applications, potential delays in processing, and narrower eligibility requirements. The expertise of immigration attorneys will be needed now more than ever to advocate for their clients, navigate complex regulations, and challenge unlawful policies.

This post is for informational purposes only and does not constitute legal advice. The views expressed in the article are those of the authors and may not reflect the views of the company, firm, its clients, or their affiliates.