Companies seeking to hire foreign talent in the United States must navigate a constantly shifting immigration landscape. The policies and procedures under each presidential administration directly impact how easily businesses can hire and retain skilled workers. It is no exaggeration to say that the 2024 presidential election will have dramatic consequences on U.S. immigration. Below, we explore how a Trump or Harris administration could impact U.S. immigration for employers and their foreign national workforce.

The Trump Administration: A More Restrictive Approach

Under the prior Trump administration, U.S. immigration policies were notably more restrictive, especially regarding employment-based immigration. Some of the most significant changes included:

1. Increased Scrutiny on H-1B Petitions: As a result of President Trump’s “Buy American Hire American” Executive Order, U.S. employers seeking H-1B visas for foreign workers experienced a higher level of scrutiny, with many petitions denied for reasons such as not meeting the “specialty occupation” requirement.
2. Travel Bans and Restrictions: The Trump administration imposed multiple travel bans, including one that restricted entry to the U.S. from seven predominantly Muslim countries, and later imposed additional travel restrictions during the COVID-19 pandemic. These measures made it difficult for companies to secure visas for their employees and even prevented some workers from returning to the U.S. after international travel.
3. Denials and Delays: Under the Trump administration, there was a notable increase in the denial rates for H-1B and green card applications. The review process became slower, with green card and naturalization applications often taking over two years to process. Additionally, the administration attempted to end programs such as Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS), creating uncertainty for many U.S. workers.
4. Burdensome Documentation Requirements: The Public Charge rule, introduced during this period, required an extensive amount of evidence for green card applicants, significantly complicating the process for many businesses attempting to hire foreign nationals.

The Biden Administration: A Shift Toward Accessibility

In contrast, the Biden administration has focused on easing some of the restrictions imposed by the Trump era and making the immigration process more efficient and transparent. At the same time, the current Administration has focused efforts on protecting U.S. workers, resulting in slower processing and a higher audit rate for PERM labor certification applications.

1. Higher Approval Rate for H-1B Petitions: One of the most significant changes has been a higher approval rate for H-1B and other temporary work visa petitions. Employers have faced less scrutiny on issues such as wage levels and remote work arrangements, with more occupations qualifying for H-1B status under the Biden administration.
2. Improved Processing Times for Some Applications: The Biden administration has also made efforts to reduce processing times for green card and naturalization applications, and in many cases, green card applications have been approved without the need for an interview. This has allowed employers to bring in foreign talent more quickly, helping them stay competitive in a tight labor market.
3. Slower Processing Times for PERMs: With an increased focus on the protection of U.S. workers and wages, the Department of Labor has increased processing times and audits of PERM labor certification applications on behalf of foreign national workers. There has also been an increase in prevailing wages, as well as state laws requiring wage transparency on job postings, which has also impacted the PERM recruitment process.
4. Visa Flexibility and Work Authorization for Spouses: Spouses of H-1B, L-1, and E-3 visa holders have seen greater flexibility under the Biden administration. For example, spouses in L-2 and E-3D status are now permitted to work in the U.S. without needing a separate Employment Authorization Document (EAD), making it easier for families to stay together and work in the U.S.
5. Focus on Family Reunification: The Biden administration’s focus on family reunification has led to policy changes that allow thousands of undocumented spouses of U.S. citizens to gain work authorization and permanent residency. These changes benefit businesses by enabling them to retain talent whose family members are impacted by immigration status.

Looking Ahead: Potential Changes Under a Future Harris Administration or Trump Administration

Should Vice President Kamala Harris ascend to the presidency, further changes to the U.S. immigration system could be on the horizon. Some potential reforms could include increasing the H-1B visa annual quota and expanding the allocation of employment-based green cards, especially for applicants from India and China. These changes would further ease the burden on companies relying on foreign talent and make the U.S. a more attractive destination for highly skilled workers

If former President Trump is reelected, it is anticipated that the Trump Administration would work quickly to rescind and rollback Biden Administration policies and programs, including DACA and parole programs for nationals of countries such as Venezuela, Haiti, Nicaragua and Cuba. In addition, the Trump Administration would likely impose scrutiny on H-1B petitions and green card applications, especially for nationals of countries such as China, in the interest of protecting U.S. national security. The Trump Administration would also likely impose new travel bans for nationals of Muslim or other countries in the interest of national security, as well as impose delays and restrictions on foreign students from these countries.

Recommendations for Supporting a Foreign National Workforce

To better navigate the complexities of U.S. immigration, companies should consider proactive strategies to support their foreign national workforce. Pursuing alternative visa options such as the EB-2 National Interest Waiver (NIW) and EB-1 petitions can expedite green card eligibility for highly skilled employees. Establishing a subsidiary or branch office in Canada could provide a backup option for transferring employees in case of visa-related issues in the U.S. Additionally, supporting family-based immigration filings, naturalization applications, and conducting internal audits of I-9 compliance will help ensure that all employees remain eligible to work. These efforts, coupled with advocacy for immigration reform, can streamline the process for businesses and enhance their ability to attract and retain foreign talent.

The differences between the Trump and Biden administrations’ immigration policies are stark, with the former emphasizing restriction and the latter focusing on accessibility and efficiency, while also protecting U.S. workers from unfair competition. For corporate clients with foreign workers, understanding these shifts is essential to effectively navigate the U.S. immigration system and ensure timely, successful outcomes for both employees and employers. As policies continue to evolve, staying informed and adapting strategies will remain crucial for businesses seeking to hire and retain international talent.

Amy Royalty is an attorney in Ryan, Swanson & Cleveland, PLLC’s Immigration Group and can be reached by email at [email protected].