We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:

The Future of Business Immigration Under a Hardline Trump Administration

As President-elect Donald Trump prepares to return to the White House in January 2025, the outlook for business immigration appears increasingly bleak. Trump's recent appointments to key positions signal a return to hardline immigration policies that could have significant implications for H-1B, L-1, and other employment-based visa programs. The individuals selected to lead his administration have well-documented histories of advocating for restrictive immigration measures, raising concerns across the business community.

Key Appointments and Their Implications:

Tom Homan as “Border Czar”: Former ICE Director Tom Homan will oversee U.S. border security, including Trump's campaign promise to deport millions of undocumented immigrants. Homan's previous tenure as acting director of ICE was marked by the controversial “zero tolerance” policy, which separated migrant children from their parents. His hardline stance may extend beyond enforcement at the border, potentially influencing policies that affect the flow of skilled workers into the U.S.

Stephen Miller as Deputy Chief of Staff: Stephen Miller, known as an architect of the Trump administration's restrictive immigration agenda, has been named Deputy Chief of Staff. Miller has consistently pushed for policies to reduce legal immigration, including advocating for the elimination of STEM OPT programs and introducing additional bureaucratic obstacles for employment-based green cards. His influence could lead to renewed efforts to curtail business immigration and restrict pathways for international students and skilled workers.

Kristi Noem as Secretary of Homeland Security: Governor Kristi Noem's nomination to lead the Department of Homeland Security (DHS) places her at the helm of agencies such as USCIS, CBP, and ICE. Despite governing a non-border state, Noem has been a vocal supporter of Trump's border policies. If confirmed, she could oversee tighter restrictions on business immigration, including H-1B and L-1 visas, and potentially accelerate policy shifts that align with Trump's broader agenda.

H-1B and L-1 Visas Under a New Trump Administration: What Could Come First?

The reality of another Trump administration raises critical questions about the future of high-skilled immigration, particularly H-1B and L-1 visas. From 2016 to 2020, Trump's restrictive immigration policies reshaped the landscape for foreign professionals, employers, and international students. The denial rates for H-1B and L-1 visas surged to unprecedented levels, with Request for Evidence (RFE) rates reaching 60% and denial rates exceeding 25%, compared to the sub-8% denial rates under the Obama and Biden administrations. As Trump hinted at re-election, stakeholders wonder if history is set to repeat itself—or worsen.

Key Trump-Era Policies That Could Resurface: 

H-1B Visa Restrictions: The Trump administration's efforts to redefine “specialty occupation” and implement substantial wage increases (ranging from 40% to 100%) for H-1B positions posed significant financial and operational challenges for employers. Consulting firms and IT companies, in particular, faced heightened scrutiny with stricter employer-employee relationship requirements, including extensive documentation mandates for third-party work sites. Although these measures were halted through litigation, a unified Republican control of the White House, Senate, and Congress could grant the Trump administration greater freedom to enact similar laws or regulations if given the opportunity.

L-1 Visa Challenges: L-1 visas for intracompany transferees faced significant challenges under the Trump administration. Policies that closely examined the qualifying relationship between foreign and U.S. entities, along with concerns over wage disparities, resulted in high denial rates for L-1 petitions. A new Trump administration might introduce additional restrictions, such as requiring Labor Condition Applications (LCAs) similar to those for H-1B visas and prohibiting L-1 workers from being placed at client sites. These stringent measures could further incentivize employers to turn to offshoring as a more practical alternative.

Threats to OPT and STEM OPT: The Trump administration proposed limiting or eliminating Optional Practical Training (OPT), a program that helps international students gain U.S. work experience, along with its STEM extension. These restrictions discouraged international students from studying in the U.S. and created barriers to transitioning into H-1B roles.

Replacement of Employment-Based Green Cards with a Point System: Speculation has grown about whether Trump might seek to replace the PERM and employment-based green card system with a point-based immigration model similar to Canada and Australia. Such a system would prioritize skills, education, and age over employer sponsorship, potentially sidelining industries reliant on employer-based recruitment.

December 2024 Visa Bulletin Update: Dates for Filing Announced

The December 2024 Visa Bulletin brings favorable news for employment-based applicants, as USCIS will honor the Dates for Filing chart for adjustment of status applications. Foreign nationals with priority dates earlier than the listed cutoffs can file their employment-based adjustment applications, potentially speeding up their green card process.

Key Highlights:

• EB-1 Remains Favorable for Most: While India (April 15, 2022) and China (January 1, 2023) face cutoffs, all other countries remain current, providing opportunities for applicants worldwide.
• EB-2 and EB-3 Slow Progress for India and China: India continues to experience significant retrogression, with EB-2 stuck at January 1, 2013, and EB-3 at June 8, 2013. For China, the cutoffs are October 1, 2020 (EB-2) and November 15, 2020 (EB-3).
• EB-5 Offers Opportunities: For unreserved categories, India and China face delays, but set-asides for rural, high unemployment, and infrastructure projects remain current across the board, providing a pathway for investors.

Implications for Applicants:

Foreign nationals in retrogressed categories, particularly from India and China, should act quickly to file adjustment applications while Dates for Filing are in effect. Employers and immigration attorneys must stay proactive to ensure eligible individuals do not miss this opportunity.

This update signals ongoing delays for certain regions but also provides a window for action for others, highlighting the complexity of the employment-based immigration landscape.

USCIS Updates Policy on Lawful Admission for Naturalization Applications

Federal Court Invalidates Parole Program for Undocumented Family Members of U.S. Citizens

​​We hope you find this information valuable. If you have any questions or require legal assistance related to any of these updates, please don't hesitate to contact us. We are here to help.

Sincerely,

Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.