As an immigration attorney, I've learned that inspiration can come from the most unexpected places. Recently, during a family movie night watching Moana 2 over the Thanksgiving holiday, I was struck by a powerful message that resonates deeply with our current immigration landscape: There's always another way.
As an immigration attorney, navigating the sea of uncertainty following the recent election has been challenging. The election has cast a long shadow over the immigration community, with a constant barrage of news feeds and social media posts filled with predictions about potential immigration policy changes. Among the anticipated policy changes under a potential Trump 2.0 administration are:
Mass Deportation Initiatives
Expanded Deportation Enforcement Mechanisms - President-elect Donald Trump has pledged to initiate the largest mass deportation of undocumented immigrants in history, including the potential deployment of military forces for enforcement.
Increased Allocation of Resources to Deportation Proceedings - The federal government may allocate more resources toward speeding up the deportation process by hiring additional judges for immigration courts and increasing funding for ICE operations. This may lead to a more streamlined, but potentially more intense, deportation system.
Aggressive Denaturalization Efforts
Increased Scrutiny of Naturalization Cases - The naturalization process could face much stricter scrutiny, with potential increases in audits of naturalization applications. Immigration officers could be tasked with reviewing whether applicants made false statements or misrepresented information during their applications.
Potential Retroactive Review of Previously Granted Citizenship - There could be an initiative to review naturalization cases retroactively, with individuals who were previously granted U.S. citizenship facing denaturalization proceedings if their original applications were deemed fraudulent or if they violated U.S. laws after becoming citizens.
Stricter Interpretation of Naturalization Requirements - Interpretation of requirements such as "good moral character" could become more rigid, with a more aggressive approach to deny citizenship to those who might have minor infractions in their past or have been involved in activities considered to be against U.S. interests.
Revival of Restrictive Policies
Reinstatement of the Buy American, Hire American (BAHA) executive order - This order aimed to prioritize American workers and restrict foreign worker programs like H-1B, making it harder for employers to hire foreign talent. A potential revival could lead to more restrictions and the imposition of higher standards for visa issuance.
Potential implementation of more stringent immigration quotas - There may be efforts to limit the number of immigrants allowed in under family-based and/or employment-based visas. A more restrictive approach could involve limiting diversity visas or introducing caps on asylum applications.
Reduction in employment-based immigration pathways - There could be a reduction in the number of employment-based immigrant visas, such as those for high-skilled workers (H-1B), or more restrictions placed on labor certification processes, limiting the ability for companies to sponsor foreign workers.
Revival of the public charge rule - The public charge rule, which restricts admission to immigrants who are deemed likely to rely on public benefits, could be enforced more rigorously. This would affect those seeking green cards or visas, potentially denying them if they are considered to be financially dependent on government assistance.
Renewed travel and Muslim bans - The travel ban, which initially targeted several predominantly Muslim countries, could be reintroduced or expanded to further restrict entry from countries deemed to be a national security threat. This could limit visas or admissions for citizens of these countries.
Cancellation of deference to previously approved cases for extension petitions/applications - The administration could decide to remove "deference" to past approvals for certain visa holders, meaning that renewals or extensions of status would be treated as new applications, subject to more stringent scrutiny and potential denials.
Work Authorization Challenges
Potential elimination of work authorization for H-4 visa holders/spouses of H-1B visa holders - One of the controversial proposals during the Trump administration was to eliminate work authorization for spouses of H-1B visa holders (H-4 visas). This change would affect thousands of families, particularly those from India, who have been waiting for years to receive permanent resident status.
Increased restrictions on existing work permit programs - Other existing work authorization programs, such as those for refugees or Temporary Protected Status (TPS) holders, could face further limitations, potentially reducing opportunities for work while waiting for permanent status.
Visa and Immigration Scrutiny
Heightened review processes for student visas, OPTs/STEM OPTs, and Day-1 CPTs - There could be more stringent checks on student visas, including more intensive interviews, background checks, and documentation requirements to ensure that students have genuine academic intentions and financial means to support themselves. The OPT/STEM OPT programs, which allow international students to work in the U.S. temporarily in their field of study, might face restrictions, limiting the duration of authorized work or tightening eligibility requirements. In addition, The Trump administration had previously considered limiting the simultaneous use of CPT and OPT, which could have reduced OPT eligibility for students who utilized significant amounts of CPT during their studies. If these restrictions are reinstated, they could affect students who depend on Day 1 CPT programs.
Work Visas (H-1Bs, L-1, etc.) - Visa applications for work visas such as H-1B or L-1 may face heightened scrutiny, including an increase in requests for additional evidence (RFEs) and Notice of Intent to Deny (NOIDs) to prove that applicants meet stringent job requirements or that the sponsoring employer is offering legitimate employment.
More intensive background checks and increased documentation requirements - Expect more extensive background checks and increased documentation requirements for all visa categories, with further emphasis on verifying past immigration violations, criminal history, and even social media activity.
Workplace Enforcement
Expanded I-9 compliance audits - Employers could face more frequent and aggressive audits of their I-9 forms, which verify the employment eligibility of workers. The government may increase penalties for violations or non-compliance.
More frequent and aggressive worksite inspections - Worksite inspections by ICE officers could become more common, targeting employers who might be hiring undocumented workers. This would create a higher risk for employers who fail to comply with immigration laws.
Increased penalties for employers - Penalties for employers who hire unauthorized workers may increase, further incentivizing compliance with strict immigration laws and deterring businesses from employing undocumented workers.
Enhanced verification processes - The use of electronic verification tools, such as E-Verify, could be expanded and made mandatory for all employers to ensure that their workers are legally authorized to work in the U.S.
Processing Challenges
Significantly longer visa processing times - Processing delays for visa and immigration applications, including employment-based and family-based immigration cases, could be exacerbated, leading to frustration among applicants and uncertainty in the immigration process.
More extensive documentation requirements - Applications could require more documentation, including financial statements, educational records, and employment history, making the process more cumbersome and time-consuming.
Proactive Solutions
In light of these potential challenges, we recommend the following proactive steps:
Premium Processing: File visa extension petitions with USCIS with premium processing and upgrade any existing cases to premium processing before January 20th, 2025 to secure faster adjudication.
Concurrent Filing: If possible, concurrently file your petition with I-485 Adjustment of Status before January 20th, 2025. This can provide additional protection and processing security.
Compliance Audit: Employers should conduct internal I-9 audits and review compliance with US Department of Labor's Labor Condition Application requirements for those with H-1B, H-1B1 and/or E-3 employees to ensure that any errors are corrected and that the company remains fully compliant with U.S. immigration laws.
Documentation Preparation: Gather and organize all supporting documents meticulously. Anticipate potential additional scrutiny and make sure to maintain comprehensive and well-documented case files.
Limit travel plans: It is advised that employees avoid making international travel plans whenever possible and exercise caution when traveling on visas and advance parole.
Consult Professionals: Seek immediate consultation with immigration attorneys and develop personalized strategy based on individual case specifics.
Know your rights: Learn about your rights in case immigration authorities come to your home or workplace. Ask if you are free to leave—if they say "yes," you can walk away. If they say "no," remember that you have the right to remain silent. Do not consent to searches of your home, car, or your body. Avoid signing anything you do not understand, especially if it's in a language you're not familiar with, and never provide false information or documents. Request to speak with a lawyer. For further details, visit: https://www.ilrc.org/resources/community/know-your-rights-toolkit.
The Moana Mindset: There's Always Another Way
Like Moana facing impossible storms, immigration professionals and immigrants find themselves navigating treacherous waters. The proposed policies seem designed to create maximum uncertainty, targeting not just undocumented immigrants, but potentially impacting legal immigrants and highly skilled workers. The movie's core message struck me profoundly: When faced with seemingly insurmountable challenges, there's always another path forward. Moana's resilience in the face of constant obstacles—deadly storms, monster attacks, a continuously damaged raft—mirrors our current immigration challenge.
To our clients, colleagues, and the immigrant community: Stay resilient. Stay strategic. There is always another way. Our goal transcends mere survival. We aim to continue supporting skilled workers, families, and individual's American dreams. Where obstacles emerge, we'll create pathways. Where barriers stand, we'll discover solutions.
The immigration journey has never been about smooth sailing. It's about navigation, determination, and the unwavering belief that opportunities exist for those willing to seek them.
Just as Moana found her way through impossible challenges, we too will chart a course through these uncertain times.
Note to Readers: This perspective is based on current predictions and potential policy changes. Always consult with a qualified immigration attorney for personalized guidance.
