Prepare for anticipated immigration, employment changes in Trump’s second term
President-Elect Donald Trump has begun assembling the administration for his second term, signaling potential shifts in policies that could significantly affect employment law and immigration.
Looking back to see what’s coming
While detailed plans for immigration reform are expected in the coming weeks, key appointments already offer a preview of the priorities likely to dominate the new administration. Notable figures include Stephen Miller as deputy chief of staff for policy; Kristi Noem as secretary of homeland security, overseeing agencies like U.S. Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS); and Tom Homan, the former acting director of ICE, appointed as the new “Border Czar.”
These selections suggest a focus on stricter border controls, increased deportations, and expanded administrative hurdles for immigration processes.
To understand what may lie ahead, examining initiatives from the president-elect’s first term can provide valuable insight. ICE, a critical agency within the Department of Homeland Security (DHS), operates through two main components: Homeland Security Investigations (HSI), which addresses cross-border criminal activities and worksite enforcement activity, and Enforcement and Removal Operations (ERO), which focuses on deportations.
During his first term, these components were empowered by Executive Orders that boosted budgets and workforce expansions, such as the hiring of additional law enforcement officers and attorneys to enforce immigration laws and investigate transnational criminal organizations.
In 2017, under Homan’s leadership, ICE significantly ramped up worksite enforcement efforts. By fiscal year 2018, ICE’s HSI unit had doubled the number of worksite investigations compared with the previous year. The efforts led to thousands of I-9 audits, numerous criminal and administrative arrests, and unprecedented financial penalties for businesses failing to comply with immigration laws.
According to an ICE press release on May 14, 2018—less than seven months after then-ICE Deputy Director Homan issued a directive calling for increased worksite enforcement investigations to ensure U.S. businesses maintain compliance—HSI doubled the amount of ongoing worksite enforcement cases in that fiscal year compared with the prior fiscal year. From October 1, 2017, through May 4, 2018, HSI opened 3,510 worksite investigations; initiated 2,282 I-9 audits; and made 594 criminal and 610 administrative worksite-related arrests, respectively.
In comparison, for the previous fiscal year, running October 2016 to September 2017, HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement. Businesses were ordered to pay $97.6 million in judicial forfeitures, fines, and restitution and $7.8 million in civil fines, including one company whose financial penalties represented the largest payment ever levied in an immigration case.
This aggressive stance on worksite enforcement marked a clear shift toward criminalizing noncompliance—a trend likely to be revived in Trump’s second term.
H-1B visa program improvements could reverse
Since 2020, several updates have modernized immigration and compliance processes, including adjustments to the H-1B visa program. A cornerstone of employment-based immigration for specialty occupations, the H-1B visa has several levels of complexities, including significant changes to its registration process, labor condition applications, and compliance documentation.
Following the president-elect’s first administration, USCIS confirmed H-1B denial rates had reached as high as 24%. Employers now see denial rates of 2% on average. Although denial rates for H-1B petitions have dropped to historic lows, largely as the result of recent policy reversals and legal settlements, these trends could reverse if the incoming administration resumes stricter adjudication policies.
Employers may once again face increased scrutiny through requests for evidence (RFEs), denial rates, and heightened enforcement of wage and hour regulations, potentially deterring the hiring of highly skilled foreign workers.
Recent improvements in processing times and modernization efforts, such as streamlining employment authorization documentation (EAD) issuance, reducing redundant biometrics appointments, and updating the Form I-9 for employment authorization, have eased compliance burdens for employers. However, a renewed emphasis on enforcement under the incoming administration could shift resources away from such facilitation efforts, complicating processes for both employers and employees.
With control of both the executive and the legislative branches, the new administration may move beyond Executive Orders and policy memoranda to push for legislative changes that permanently reshape employment-based immigration.
Takeaways
Trump’s second term is poised to reignite debates over immigration and employment law, with wide-ranging implications for businesses, workers, and the broader economy. As these changes unfold, staying informed and prepared will be essential for navigating the evolving landscape of compliance and enforcement.
You can (and should) take proactive measures to mitigate risks and prepare for potential policy shifts. Steps may include forming task forces to address compliance, conducting internal audits of current practices and documentation, and providing comprehensive training for employees involved in site visits or other compliance-related interactions.
Ann Lee and Chris Thomas are attorneys with Holland & Hart LLP in Denver, Colorado. Ann works with companies on proactive plans and programs to meet their current and future talent needs, helping companies in a wide range of industries to secure the right talent for business-critical functions through employment-based non-immigrant and immigrant visas. Chris works with executives, operational leaders, and talent management teams to help position companies for success with effective, compliant global mobility programs. They can be reached at ahlee@hollandhart.com and clthomas@hollandhart.com.
