Trump 2.0 Executive Orders that Impact Employment-Based Visas
On January 20, 2025, President Trump issued a series of executive orders that imposed significant reforms to the immigration system, many of which may or will have an impact on employment-based visas. The following is a summary of executive orders impacting employment-based visas and immigration.
Executive Order Protecting the Meaning and Value of American Citizenship
According to this order, citizenship will only be conferred to children born in the United States whose mother or father is a lawful permanent resident or U.S. citizen. Effective February 19, 2025, no department or agency of the U.S. government may issue documents recognizing U.S. citizenship or accept documents issued by State, local, or other governments or authorities purporting to recognize U.S. citizenship to persons when their mother was unlawfully present in the U.S. and their father was not a U.S. citizen or legal permanent resident at the time of their birth; or when their mother’s presence in the U.S. was temporary, including when visiting the U.S. under the Visa Waiver Program or visiting on a student, work, or tourist visa, and their father was not a U.S. citizen or legal permanent resident at the time of their birth.
- This includes children born in the United States to any worker in lawful nonimmigrant status, such as on an H-1B or L-1 visa.
- The Definition of mother and father is limited to immediate female and male biological progenitors and may impact the children of same-sex couples and children born through artificial reproductive technologies.
- Multiple lawsuits seeking to enjoin this executive order have already been filed.
This order may have future impacts on eligibility criteria for TN visas available to Canadians and Mexican citizens and may have impacts on other treaty-based nonimmigrant visa categories such as E-1 (treaty-trader), E-2 (treaty investor), H-1B1 (specialty occupation workers from Chile and Singapore) and E-3 (specialty occupation workers from Australia).
This order directs that the U.S. trade policies promote “investment and productivity, [enhance] our Nation’s industrial and technological advantages, [defend] our economic and national security, and — above all — [benefit] American workers, manufacturers, farmers, ranchers, entrepreneurs, and businesses.” It requires the review of all existing trade agreements and the impact of the U.S.-Mexico-Canada Agreement (USMCA) on American workers, farmers, ranchers, service providers, and other businesses. There is a requirement to review the USMCA agreement before its renewal in 2026, which may result in changes to who is eligible to receive TN visas.
America First Policy Directive to The Secretary of State
This order directs foreign policy to “always put America and American citizens first” and may be a restatement of the first Trump administration’s Buy American, Hire American (BAHA) Executive Order 13788. The policies resulting from BAHA resulted in significant scrutiny of employment-based visas, new difficulties for U.S. businesses to hire foreign talent, and increased wage requirements for some employment-based visa classifications.
Changes to how the federal government recognizes gender will have an impact on employment-based immigration processes, particularly increasing hardships and interjecting risk and uncertainty for transgender and nonbinary noncitizens working in the U.S. on nonimmigrant visas. Government-issued identity documents, including passports, visas and Global Entry Cards, will only reflect male or female, and it is unclear whether the government will require the reissuance of existing documentation.
Protecting the American People Against Invasion
This is a wide-ranging order that calls for the maximum enforcement of immigration law in the United States. Specifically of interest to employers:
- Directs the DHS to set enforcement priorities, including illegal entry, unlawful presence and people with final orders of removal. Some of these priorities may apply to workers with existing work authorization.
- Expedited removal to the extent allowed by statute.
- It calls for the expansion of detention facility capacity and for DHS to detain everyone pending resolution of their cases.
- It requires the registration of undocumented aliens and the prioritization of enforcement against those who do not comply.
Expedited removal is a process that allows the DHS to quickly remove noncitizens without a hearing, allowing deportation to occur quickly without access to an attorney or access to evidence at a port of entry. From June 2020 through March 2022, immigration officers were authorized to use expedited removal to the fullest extent permitted by law and applied it to anyone located within 100 miles of any U.S. border who had not been admitted or paroled into the United States and could not establish they had been present in the U.S. for the previous two years.
Work authorization may have been granted to certain workers who fall under the new enforcement priorities. Further, the determination of unlawful presence can be nuanced. In some cases, reasonable minds may differ on whether someone is, in fact, accruing unlawful presence, but existing statutory law allows up to 180 days in most instances to fix what could be a highly technical status violation. Employment immigration law is complex, and sometimes technical status violations occur, often unknown and out of the control of the nonimmigrant worker. While it remains to be seen whether a technical status violation that could result in the accrual of unlawful presence could trigger priority enforcement, at the very least, there will be a lot of nonimmigrant workers who will be very concerned about this executive order.
Initial Rescissions of Harmful Executive Orders and Action
Another wide-ranging executive order rescinded several Biden-era orders and set the stage for future executive action, including an expansion of expedited removal in the interior of the country and others. It will be seen how the rescission of these immigration-related executive orders impacts employers:
- Executive Order 13993 of January 20, 2021 (Revision of Civil Immigration Enforcement Policies and Priorities).
- Executive Order 14010 of February 2, 2021 (Creating a Comprehensive Regional Framework To Address the Causes of Migration, To Manage Migration Throughout North and Central America, and To Provide Safe and Orderly Processing of Asylum Seekers at the United States Border).
- Executive Order 14011 of February 2, 2021 (Establishment of Interagency Task Force on the Reunification of Families).
- Executive Order 14012 of February 2, 2021 (Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans).
- Executive Order 14013 of February 4, 2021 (Rebuilding and Enhancing Programs To Resettle Refugees and Planning for the Impact of Climate Change on Migration).
Within 60 days, the administration will identify nations with deficient vetting procedures that will be subject to a complete or partial travel ban under INA 212(f). This is similar to the 2017 travel ban targeting nationals mostly from Muslim-majority countries.
Extreme vetting of all visa applicants will be re-established at the baseline level seen at the end of the first Trump administration, and all resources available will be used to maximize the scrutiny of visa applicants and those who are already in the United States in lawful status. In addition, the Department of State and other agencies will evaluate all visa programs for national security concerns.
- Stricter scrutiny of all visa applicants and those already in nonimmigrant status will result in significant uncertainty for employers and families.
- Expect additional delays in the adjudication of visas, both at the USCIS and at our Embassies and Consulates abroad.
The attorneys at Maynard Nexsen will be following the impacts of these executive orders and assessing additional executive actions during the new administration. We provide concrete, actionable advice to our clients and value our trusted relationships with our clients. If your company has any concerns about the impacts of executive actions on your operations, please contact any of us.
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