President Trump's Immigration Executive Order Blitz
With a blitz of executive orders in his first few days in office, President Donald Trump is focused on making swift changes impacting immigration. Foreign nationals and U.S. companies employing foreign nationals may be directly affected and will need to pay attention to memos, policies and orders the administration is anticipated to issue.
Outlined below, we review several of President Trump's recent executive orders and their potential implications for foreign nationals and the U.S. companies that employ them.
Vetting and Screening to the Maximum Degree/Possible Future Travel Bans
This executive order reinstates the stringent and enhanced vetting processes for visa applicants and the expanded immigration enforcement actions for U.S. employers that were in place during Trump's first term. This includes increased workplace raids and audits by U.S. Immigration Customs and Enforcement (ICE) and Homeland Security Investigations. Employers should anticipate more rigorous scrutiny of their hiring practices and employee documentation.
Employers are encouraged to conduct internal audits to ensure compliance with Form I-9, Employment Eligibility Verification requirements and develop a response plan for potential ICE enforcements actions, including training staff and engaging legal counsel. Employers should anticipate the possibility of future travel bans, increased scrutiny and vetting of foreign nationals applying for visas at U.S. consular posts. This could lead to delayed processing, increased administrative requests for visa issuance as well as increased vetting with Customs and Border Protection when entering the United States. Multiple federal agencies are tasked with reporting and identifying countries that are considered a national security risk.
America First Trade Ban
This executive order revisits and will review the United States-Mexico-Canada Agreement (USMCA) as well as other trade agreements and tariffs. It directs the secretary of treasury, in consultation with other federal agencies, including the Department of Homeland Security and U.S. Department of Commerce, to investigate the feasibility of establishing an External Revenue Service to collect tariffs, duties, and other trade related revenue. As the USMCA is due to be renewed in 2026, policy shifts could impact eligibility criteria and the occupational classifications for TN status. Other treaty-based nonimmigrant categories related to Mexico and Canada may also be impacted, including the E-1 and E-2 visas.
Rescission of Prior Executive Orders
The new administration has rescinded several executive orders from the Biden administration focused on reducing barriers to the legal immigration channels, such as waivers for certain interviews. Many Biden-era executive orders were rescinding executive orders from Trump's first term. In addition, the guardrails that Biden had for fast developing technology and artificial intelligence were rescinded, thereby reducing efforts to attract and retain foreign science, technology, engineering and math talent with pathways for nonimmigrant and permanent residence.
Ending Birthright Citizenship
This executive order aims to end birthright citizenship for children born in the United States for whom neither parent is a U.S. citizen or a lawful permanent resident at the time of the child's birth. This impacts not only children of undocumented parents but also children born to parents who are present in the United States pursuant to approved temporary legal status (H-1B, H-4, F-1, etc.). Unless the order is enjoined, it will take effect February 19, 2025. Impacted children born after this date will not be eligible to apply for U.S. passports and may even need to apply for temporary status to ensure lawful presence. This will indirectly impact U.S. companies employing foreign nationals who now face uncertainty regarding the immigration status of their newborn children. Employers may need to navigate complexities related to employees' dependents' legal statuses – potentially requiring relocation and family support policies – and may risk losing members of their workforce.
Multiple lawsuits have already been filed challenging this order and it is not expected to take effect in the immediate future.
CONCLUSION
Trump campaigned on immigration reform, and we anticipate additional executive orders affecting foreign nationals and their employers. Trump has specifically mentioned ending multiple parole programs for Cubans, Haitians, Nicaraguans and Venezuelans. Many foreign nationals from these countries are lawfully working in the United States right now. Employers should pay close attention to future executive orders that could impact work authorization for their existing workforce from these and other countries.
Stinson is closely monitoring the dynamic changes surrounding business immigration.
For additional information on these topics, please reach out to Olga Andreyeva, Elizabeth Chatham, Brad Sandler, Renée Mueller Steinle or the Stinson LLP contact with whom you regularly work.
