Immigration Law Insights

Immigration was a hot topic throughout the 2024 Presidential campaign, and President Trump continued to keep the issue top of mind on his first day in office by issuing several immigration-related executive orders.  While the media has primarily focused on impacts related to individuals who may be subject to the administration’s removal priorities, several executive orders could have implications for employers.  The following provides a summary of some of the executive orders’ potential impacts on businesses:

Executive Order Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats 

Shortly after taking office in 2017, the Trump administration directed the Department of State to identify nations with deficient visa vetting procedures.  This process ultimately subjected foreign nationals from select countries to complete or partial U.S. visa issuance and/or travel restrictions. 

On the first day of his second term, President Trump signed a similar order reestablishing enhanced vetting at U.S. Consulates and Embassies abroad.  In addition to potential travel restrictions, the reintroduction of enhanced vetting is likely to result in increased delays in visa processing. 

In the short term, employers should consider advising their foreign national workforce to avoid non-essential international travel and ensure they account for significant wait times when planning for visa interviews abroad.  Importantly, legal permanent residents (Green Card holders) were exempt from travel restrictions implemented in 2017 and it is likely they would remain exempt from any future travel restrictions. 

Executive Order Protecting the American People Against Invasion

While primarily concerned with shifting enforcement priorities to illegal entry, unlawful presence, and persons with final orders of removal, the Executive Order Protecting the American People Against Invasion also has implications for employers.  Specifically, the order directs hiring increases for Immigration and Customs Enforcement (“ICE”) officers, despite most of the federal government undergoing a hiring freeze. 

ICE serves a number of U.S. immigration functions, including I-9 worksite enforcement.  Given the potential for increased agency hiring, employers can expect an increased focus on worksite enforcement and I-9 compliance audits.  I-9 audits reached an all-time high during President Trump’s first term, but declined significantly during the Biden administration.  The administration could potentially use I-9 audits as a way to implement its removal priorities by using worksite compliance as a vehicle to identify unauthorized workers for removal.  Employers—particularly those in targeted industries such as construction, hospitality, and food processing—should consider auditing existing I-9 forms and implementing I-9 training to ensure future compliance.

The Executive Order Protecting the American People Against Invasion also mandates that actions be taken to ensure employment authorization is not provided to undocumented foreign nationals.  Some believe this could be the first step in the administration seeking to restrict grants of work authorization to foreign nationals without an underlying nonimmigrant status, including some with Temporary Protected Status.  Historically, Green Card applicants have also been eligible for work authorization without needing to maintain an underlying nonimmigrant visa status while their Adjustment of Status Application processes.  The change in policy may require employers to reevaluate sponsorship strategies to ensure employees continue to be work authorized, even if they are in the midst of Green Card processing. 

Executive Order Protecting the Meaning and Value of American Citizenship

Birthright citizenship was another point of emphasis during the election that was quickly addressed by the Trump administration after the inauguration.  The Executive Order Protecting the Meaning and Value of American Citizenship prohibits the federal government from issuing citizenship documentation to a child born in the United States when the child’s mother was unlawfully present in the United States and the father was not a U.S. citizen or lawful permanent resident at the time of birth.  The order also prohibits issuing citizenship documentation when the child’s mother’s presence was lawful but temporary and the father was not a United States citizen or a lawful permanent resident at the time of birth.  The latter scenario could directly impact temporary foreign workers, given the birth of a new child to nonimmigrant worker parents may require arranging for the child to obtain a nonimmigrant dependent status. 

The Executive Order Protecting the Meaning and Value of American Citizenship was enjoined on January 23, 2025 by a U.S. District Judge in the State of Washington.  This litigation is likely to be addressed by the Supreme Court, so employers should continue to monitor this issue and its impact on their foreign national workforce.

America First Trade Policy

The TN visa has been a staple of both the North American Free Trade Agreement (“NAFTA”) and the United States-Mexico-Canada Agreement (“USMCA”) since their inceptions.  The America First Trade Policy order directs the review and renegotiation of or withdrawal from agreements that disadvantage U.S. workers.  While it is not anticipated that the TN visa would be significantly impacted, employers of TN workers should continue to monitor for updates, particularly given the increased scrutiny the TN visa has received in recent years following abuse allegations.  Other country-specific visa categories related to trade agreements that could be impacted by this executive order include the E-3 visa (Australia) and the H-1B1 visa (Chile and Singapore).  Treaty Trader (E-1) and Treaty Investor (E-2) visas are also rooted in foreign treaties and could potentially be impacted by this executive order. 

As often happens with a change in the administration, the immigration landscape appears poised to shift significantly during the coming months.  The Trump administration is likely to issue additional immigration-related executive orders and employers should continue to be mindful of potential business impacts.  If your business has questions regarding effects of the Trump administration’s new executive orders, contact Melissa Azallion Kenny (makenny@burr.com), Anna Scully (ascully@burr.com), or Jon Eggert (jeggert@burr.com) on the Burr & Forman immigration team.