Business Immigration Practices Brace for ‘Dramatic’ Changes Under Second Trump Presidency

With inauguration day just over a month away, lawyers are gearing up for what they expect will be unprecedented and sweeping changes in the country’s immigration policies.

Lawyers advising companies seeking to hire or retain foreign workers in the U.S. are growing increasingly concerned about the years ahead.

“I think it’s going to be dramatic, and having lived through the first Trump administration, we’ve seen what he’s done, and this time, I think it’s going to be more extreme,” said Mark Koestler, partner and co-chair of Kramer Levin Naftalis & Frankel’s immigration practice. Koestler noted that while “the principal focus leading up to the election has been on the southern border and the undocumented population, Project 2025 had a lot of bad stuff in it that we’re going to see on the business side. … Much of it revolves around delaying things.”

Specific policies have yet to be enacted, but Koestler said, “I have zero doubt that there are going to be restrictions on business immigration, that’s what we saw the last time around.”

There could also be an outright halt to business immigration, which would be unprecedented.

“In that Project 2025 document, one of the things that is suggested is a pause on business immigration when backlogs become excessive,” though it doesn’t define what “excessive” entails, Koestler said. “That would just be dramatic.”

What Lawyers Are Focusing On 

Access to temporary and permanent work visas, green cards, and even intra-company international transfers via L-1 visas could be at risk, attorneys at various Am Law 200 firms told The American Lawyer. 

Travel bans are also expected to be at issue, which could limit workers’ ability to be reassigned to jobs in different countries.

“It’s global mobility, that’s what we’re about now in an interconnected world, and to say we’re going to have travel bans again imposed on majority Muslim countries, that’s a big deal because as a company if you need to move people around you have to add this consideration,” said Kathleen Campbell Walker, immigration practice group chair at Dickinson Wright.

Law firms also expect an uptick in tackling worksite raids. Ted Chiappari, partner and head of Duane Morris’ immigration practice group, said the firm is experienced in representing employers in worksite enforcement actions by U.S. Immigration and Customs Enforcement and expects more to occur in the future.

Some of these firms’ clients are less worried than others–those with a suitably authorized workforce are “not really panicked about it, they just understand that there are going to be disruptions, delays, and additional expenses,” Chiappari said.

But businesses who “are relying on third-party vendors to supply temporary help, who are in industries where it’s sort of an unspoken secret, but everyone knows that some people’s paperwork may not be as pristine as others” are more at risk of worksite raids, he noted. And while employers might want to begin vetting their workers using the government’s E-Verify tool, if the workforce is unionized that becomes harder to negotiate. “If there’s a union involved, the union typically avoids trying to avoid E-Verify they’ve been trying to support the workers,” which leads to further negotiating on the attorneys’ part, Chiappari said.

Until recently business immigration has “historically been considered legal immigration and not a problem by and large for the U.S. economy,” Chiappari said, adding that “most U.S. companies would rather hire a U.S. worker if they can, they don’t want to go through the hassle [and] expense of hiring an immigration lawyer to do this.”

Koestler affirmed this, noting, “The H1-B [visa] has a prevailing wage component, and that’s there so that U.S. businesses can’t hire cheap foreign labor.”

There are four levels of wage rates for these visas, ranked from the least to most skilled labor. In his prior term, Trump talked “about removing level one and two wages, only allowing for H1-Bs for people who had level three and four wages,” Koestler said. “That really knocks out just a tremendous amount of people, particularly ones coming right out of school.” This will impact businesses’ recruiting tactics and eventually force talented labor out of the country, Koestler said. “These are people who create jobs, they don’t take jobs,” he noted.

Backlog Prompts Concern 

Am Law 200 firms handling business immigration work are increasingly perturbed by the mounting backlog of cases to be processed. The State Department issued some 10.4 million immigrant and nonimmigrant visas in 2023, and some 46,508 of them were employment-based preference visas.

Courts are still coping with the hangover from the COVID-19 pandemic and are not yet up to speed, which will further hamper their ability to process business visas or hear application appeals.

“The question now is what triage are they going to do,” Walker questioned.

“The U.S. Citizenship and Immigration Services agency has been so backlogged and underfunded and understaffed–they’re letting contractors go left and right now,” Walker said. She noted that the agency has confirmed the extension period for work authorization that can’t be adjudicated in a timely manner will be “maintained permanently at 540 days, versus the 180 days it was supposed to revert to.”

She noted that some people applying for green cards for work can spend “over 20 years, over 50 years waiting for the immigrant visa” depending on their category and country of origin.

Regardless of which policies Trump decides to enact, firms will have a full caseload throughout his administration and likely for years afterward as the ramifications of his decisions reverberate through the courts.

“What you’re doing is you’re trying to figure out what kinds of immigration issues would impact your particular client group [and] you need to start sending warnings about expecting restrictions on travel,” Walker said when asked about how her practice group is preparing clients for the next four years.