Business Immigration Planning for 2025

By Ted Chiappari

The Republican and Democratic Parties have both released their draft 2024 party platforms this month. So it’s an opportune time for US businesses currently planning their 2025 hiring, international personnel transfers and global mobility budgets to consider the impact of the major parties’ platforms on business immigration after the election in November.

The Democratic Platform

The draft 2024 Democratic platform identifies four immigration goals, the first two of which are, at least in broad strokes, shared by Republicans:

  • Secure the border;
  • Reform the asylum system;
  • Expand legal immigration;
  • Support long-term undocumented individuals in order to keep families together.

Acknowledging that “lasting, comprehensive reforms require congressional action,” the draft platform states that President Biden “will push Congress to pass legislation” to achieve these goals. Securing the border was not part of the 2020 platform and is presumably a nod to widespread concern about the integrity of our land borders, in particular, our border with Mexico. The other goals are consistent with the 2020 platform, even if the draft 2024 platform lacks the detail and perhaps some of the ambition of the 2020 platform.

While US businesses would certainly benefit from an expansion of legal immigration, the Biden Administration can’t deliver on that without Congressional action.

The GOP Platform

The 2024 GOP platform explicitly seeks to restrict business immigration in the following ways:

  • “Protect American Workers,” “Put American Workers First,” and “Hire American.” 
  • In the name of protecting US workers, the 2017-2021 Trump Administration made multiple attempts to issue regulations that, among other things, change how the prevailing wage was calculated in order to increase minimum compensation levels for the H1B and E3 (specialty occupation) temporary work visa and the PERM green card process. It’s reasonable to assume that these efforts would resume in a second Trump Administration.
  • The 2017-2021 Trump Administration tightened adjudicatory standards and fostered a culture of No in immigration benefits adjudication. For example, according to USCIS statistics, Fiscal Year 2016, the last year of the Obama Administration, showed an approval rate of 94.2% for nonimmigrant worker petitions (Form I129).  In contrast, Fiscal Year 2018 showed an approval rate of 81.9%. Similarly, an April 18, 2019 data presentation by Michael Hoefer, Chief, Office of Performance and Quality, labeled Buy American, Hire American Data Trends, available on the same USCIS webpage, confirms an increase in Requests for Evidence (RFEs) and a decrease in approvals for H1B nonimmigrant worker petitions over the period 2015-2018 (first quarter of FY 2019).
  • “Begin Largest Deportation Program in American History.”
  • If implemented, this will presumably involve worksite raids and may involve more frequent I9 enforcement actions against employers.
  • “Strict Vetting.”
  • While the platform targets “foreign Christian-hating Communists, Marxists, and Socialists” and “jihadists and jihadist sympathizers” for strict vetting, and supports “deport[ing] pro-Hamas radicals” and “revoking Visas of Foreign Nationals who support terrorism and jihadism” as part of an effort to combat antisemitism, any program to tighten further the vetting process for visa applicants at US consular posts, without additional resources dedicated, will undoubtedly slow down the visa application adjudication process for all visa applicants.
  • Reinstate the “Travel Ban,” presumably some version of the 2017 Presidential Proclamation 9645 (which replaced Executive Order 13780). The presidential proclamation targeted countries for their failure to share adequate information related to public safety and terrorism about their nationals. During the first Trump presidency, US employers of nationals of these countries (including Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen) had to deal with employees stranded outside of the United States, and similar disruptions can be expected in a second Trump presidency.

Indirectly, the following elements of the 2024 GOP platform, if implemented, will also most likely restrict business immigration:

  • “Rein in Wasteful Federal Spending.”

The US State Department, which is responsible for issuing visas, will almost certainly see a reduction in its budget if Trump is reelected, as happened during the first Trump Administration – see, e.g., this Foreign Policy magazine article. This will result in longer waits for visa appointments and slower visa application adjudications.

  • Repeal Biden’s AI Executive Order.
  • Biden’s AI Executive Order 14110 signaled that retention of foreign talent with US STEM degrees and an expertise in AI is in the national interest of the United States, which has resulted in an increase in so-called National Interest Waiver (NIW) petitions with US Citizenship and Immigration Services (USCIS). The repeal of this Executive Order would presumably make it more difficult to obtain approval of NIW petitions.
  • Stop China from buying American Real Estate.
  • Depending on how aggressively the already existing restrictions on real estate purchases are expanded, further restrictions may inhibit employers (including universities) in efforts to attract and retain talent from China.

Conclusions

Regardless of who becomes our next president, many of the most critical aspects of our immigration system are statutory and can only be changed legislatively, i.e., not by the executive branch. Significant legislative changes to our immigration system have by and large remained elusive the last 20 years. Even if one party were to sweep both houses of Congress and the White House in November, it is unclear what immigration legislation might ultimately be passed. The following would all require an act of Congress:

  • A merit-based immigration system, as endorsed in the Republican platform, to replace our current system of family, employment, investment and diversity immigrant (permanent) visa classifications. Similarly, ending “Chain Migration,” as endorsed in the Republican platform, could only happen with the elimination of our current statutory system of visa classifications.
  • An expansion of legal immigration, as endorsed in the Democratic platform, for example, through an increase in annual quotas for various visa classifications or the creation of new visa categories.
  • Regularization, in a comprehensive, systematic way, of the immigration status of anyone in the United States without authorization (often referred to as amnesty or legalization), as endorsed in the Democratic platform, at least for those with family ties in the United States.

In the event Biden is reelected, his Administration will almost certainly stay its course on business immigration policy, and any steps taken on border security or asylum reform are unlikely to have a significant impact on business immigration. The business immigration system will most likely continue to be administered as it has been during the first Biden term.

In anticipation of a Trump reelection, US employers relying on foreign talent may want to consider the following steps:

  • Accelerate any mission-critical transfers or hires of foreign nationals into 2024.
  • Manage expectations of internal stakeholders regarding greater unpredictability in adjudications, and likely increases in processing times, requests for evidence (RFEs) and denials beginning next year.
  • Adjust budgets for 2025 to accommodate possible increases in costs for legal fees for responses to RFEs and appeals of denials, as well as increases in travel expenses due to delays in adjudication of visa applications at US consular posts.
  • Plan for potential disruptions and delays in the global mobility of US workers abroad, who may face added challenges obtaining visas and work permits in countries that reciprocate in response to Trump’s policies.

For More Information

If you have any questions about any information discussed above, please get in touch with any of the attorneys in our Immigration Law Group.

 

 

International Travelers to the US must present Negative COVID Test Results

The Centers for Disease Control and Prevention (CDC) has issued a new rule requiring that all air passengers arriving to the United States from a foreign country provide documentation of a negative COVID-19 test or documentation that the passenger has recovered from COVID-19.  Passengers may satisfy this rule by either getting tested no more than three days before their flight departs and providing proof of the negative result to the airline before boarding, or providing documentation of having recovered from COVID-19 and that a licensed healthcare provider has cleared the passenger for travel. Learn more about this new requirement in our recent client alert.

H-1B Lottery Selection Criteria May Change to Salary-Based Process

The Department of Homeland Security (DHS) has issued a new rule that transforms the  random cap H-1B selection process to one that prioritizes registrations and petitions based on the highest Department of Labor (DOL) prevailing wage level met by the offered salary. It is not clear yet whether the incoming Biden administration will implement this rule at all or with modifications. Learn more in our recent client alert.

Supreme Court Ruling Upholds DACA Program

On June 18, 2020, a narrowly divided Supreme Court of the United States held that the Court can review the Deferred Action for Childhood Arrivals (DACA) program and that the Trump administration’s decision to terminate the program was arbitrary and capricious under the Administrative Procedure Act. Chief Justice John G. Roberts Jr. wrote the 5-4 decision in Department of Homeland Security v. Regents of University of California. DACA grants undocumented immigrants brought to the United States as children permission to live and work lawfully.

To read the full text of this Duane Morris Alert, please visit the firm website.

U.S. Expands Entry Ban to Europe’s Schengen Area as Nations Around the World Impose Entry Restrictions

Following the World Health Organization (WHO) declaration that classified the coronavirus (COVID-19) outbreak as a pandemic on March 11, a number of governments have instituted or announced measures limiting international travel. In the most notable of the new restrictions, the United States has announced that it is suspending all travel from Europe’s Schengen Area for 30 days beginning at midnight on Friday, March 13. This measure would expand existing travel restrictions in place for arrivals from mainland China and Iran.

The restrictions do not apply to U.S. citizens, legal permanent residents or their immediate families as well as holders of some categories of U.S. visas (such as A-1, A-2, C-1, D or C-1/D, C-2, C-3, G-1, G-2, G-3, G-4 and NATO visas). The Schengen Area is a 26-country group that has officially abolished border control among themselves.

Globally, it is unknown if other governments will follow suit after the announcement from the White House. However, some of the recent and notable measures that have been implemented or announced this week by other countries are as follows:

View the full Alert on the Duane Morris LLP website.

Proposed First Step Toward Immigration Reform Announced by President

On May 16, 2019, the president announced a plan to reform the U.S. immigration system, with a focus on increased border security as well as a plan to replace the employment-based green card system with a points system modeled on immigration programs in other countries, including Canada and Australia.

While specific details of the plan have not been disclosed, it is to be a merit-based system that would assess permanent residence applicants on the basis of criteria that include age, skills, education level, offer of employment, job creation potential and wage level.

View the full Alert on the Duane Morris LLP website.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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