United States: US Immigration Under The Trump Administration: What We Know And What We Think We Know


President Donald J. Trump recently issued an Executive Order, followed by a proposed bill and other guidance, which would drastically change the current immigration system. Based on these developments, employers should be prepared for immigration hiring changes and may want to consider applying now for immigrant status for affected key employees.


After months of discussions on immigration issues, promises of sweeping reform and rumors about what reform would entail, President Donald J. Trump recently issued an Executive Order, followed by a proposed bill and other guidance, which would drastically change the current immigration system. The following summary highlights some of the proposed changes, actual changes and rumors which may or may not be based on fact.

Buy American, Hire American

The Buy American, Hire American Executive Order, signed by President Trump on April 18, 2017, promises a commitment to protect jobs for US workers, create higher wages and increase job opportunities and employment rates. The Executive Order broadly demonstrates an intent to vigorously enforce immigration laws, taking particular aim at the H-1B visa program.

The H-1B specialty occupation visa is available to those who hold at least a bachelor's degree and who will work for US companies in positions which require the specific degree. Under the current H-1B visa program, 65,000 visas are available each fiscal year, with an additional 20,000 visas reserved for graduates of US master's programs or higher. A "specialty occupation" is loosely defined as one which requires at least a bachelor's degree based on education or a combination of education plus experience. Due to high demand for H-1B visas, over the past few years petitions have been selected by US Citizenship & Immigration Service (USCIS) for adjudication through a random lottery. The number of petitions submitted has been almost three times the number of available visas, leaving both employers and visa candidates disappointed. While there has been criticism that the current H-1B program may allow foreign workers to take coveted jobs from US workers, many employers feel the H-1B program is not generous enough to allow them to fill open positions.

While the Executive Order does not specify how the H-1B visa program will change, rumors have abounded. There have been discussions of limiting H-1B visas to those with both higher education and significant experience, as well as requiring that a position offered to an H-1B applicant must pay a minimum salary in the area of $120,000 or more. Filing fees for H-1B visa petitions may also be raised. Though currently there are no formal changes to the program, practitioners are seeing increased scrutiny of pending H-1B visa petitions. In particular, H-1B visa petitions filed for entry-level positions and/or lower paying positions are receiving requests for evidence, asking petitioning employers to explain how such positions qualify as a "specialty occupation." The definition of specialty occupation in current regulations does not include a review of the level of position or the salary offered, provided that the salary meets at least the "prevailing wage" which can be determined in a number of ways. Though the increased scrutiny is under fire by immigration law groups and some business organizations because it is considered rule-making without an actual rule, the current trend does provide a glimpse into what a future H-1B visa program could require.


The Reforming American Immigration for Strong Employment Act (S. 354), known as the RAISE Act, was introduced by President Trump, Senator Tom Cotton (R-AR) and Senator David Perdue (R-GA) on August 2, 2017. The RAISE Act would make the kind of sweeping immigration reforms that have been promised by the Trump administration. Not only would the RAISE Act decrease the number of immigrant visa to 140,000, half the current number allowable each fiscal year, but it would move the process to a point system. The Diversity Visa Lottery, a true lottery offering a limited number of immigrant visas each fiscal year to those from certain countries, would no longer exist.

Under the present immigrant visa system, visas are allotted in one tier based on family relationships and in another tier based on employment offers. Employers can petition for immigrant visas on behalf of individuals they have selected to fill a need within their businesses. The process is rigorous and involves scrutiny and evaluation by both the USDepartment of Labor and USCIS. Point systems are a part of legal immigration in Canada, the UK, Australia and New Zealand. Under the RAISE Act, individuals would qualify for immigrant visas based on points assigned for a number of factors including age, education, English language proficiency, job offer, extraordinary achievement and intent to invest in the US. The job offer awards points based on salary, using the median household income as a measuring stick.

Notably, under the RAISE Act, family-based immigration would all but disappear, allowing US citizens and legal permanent residents to petition only for spouses and minor children under age 18. Under the present system, a US citizen can petition for a parent or sibling and US citizen parents can petition for adult children age 21 and over. These categories would not exist under the RAISE Act.

Similar points systems were proposed in the US in 2007 and in 2013. Criticism of both systems is applicable to the RAISE Act in that the RAISE Act does not favor family unity, limiting the rights of US citizens by prohibiting them from applying for immediate family members. Moreover, the RAISE Act favors highly educated and skilled workers over less-skilled workers and disadvantages middle aged and older people. Under the RAISE Act many much needed lesser skilled jobs in agriculture, childcare, food and beverage, elder care, manufacturing and construction would suffer.

Entrepreneur Rule Delayed

The Obama administration supported a new visa program known as the International Entrepreneurs Rule (IER), commonly referred to as the "entrepreneur visa" or "startup visa." The IER is very popular with and supported by many Silicon Valley and other tech innovators in the US as a step toward ensuring that the US can continue to compete with the tech industry in China and Europe.

Proposed more than a year ago, and based on another program several years in the making, the goal of the IER is to facilitate US entry for entrepreneurs who want to invest their talents in the US. The rule would require applicants to have a track record, funding of at least $250,000, a business plan and a substantial interest in a business which was established less than five years ago. The business must also be of a "public benefit" to the US. Applicants who meet the above criteria will be issued parole status to work in the US. Parole status avoids some of the lengthy processing and documentation required of nonimmigrant visas, offering a more generous option for those who do not want to be tied to a particular company.

The IER was to have been implemented earlier this year. While official word is that the launch has merely been delayed until March 2018, there has also been discussion that it may be totally eliminated.

Increased Scrutiny of Visa Petitions and Travelers upon Entry to the US

Pending H-1B visa petitions are not the only visa petitions which are receiving additional scrutiny by USCIS. Employers and immigration practitioners are reporting an increase in the number of Requests for Evidence (RFE) issued by USCIS in a wide variety of petitions including nonimmigrant L-1 visas, as well as immigrant visa petitions based on the multinational executive/managerial category, extraordinary ability and other employment-based petitions. Again, this level of scrutiny may be aimed at what the new administration views as the direction in which immigration should go in the future.

In a related development, on August 28, 2017, USCIS announced that it would begin scheduling in-person interviews for certain individuals applying for adjustment of status to permanent residence in the US ("green card" applicants). Notably, those who are applying under employment-based petitions will be scheduled for interviews. With an effective date of October 1, 2017, the move to interview is a reversal of a long-standing USCIS policy waiving interviews for most applicants filing for green cards through employers. At this point it is unclear whether those with pending applications will be scheduled for interviews or this will only impact those who file on or after October 1, 2017. What does seem clear is that without a significant increase in resources at USCIS, the wait for interviews, and therefore the wait to complete the green card process, will become increasingly long.

Perhaps most troubling are the reports received about travelers being extensively questioned upon entry or reentry to the US, including those who have been legal permanent residents for many years. Some of the conduct by US Customs & Border Protection (USCBP) officers has been deemed abusive, resulting in complaints being lodged against USCBP. While traditionally visitors have been questioned upon entry to the US to ensure an intent only to visit, some holding valid nonimmigrant work visas are being detained upon reentry to the US, even if they have never had a problem in the past. There have also been reports of those with valid visas being denied reentry to the US. In addition, some legal permanent residents are being pressured to give up their resident status, based on USCBP officers' opinions that the residents are spending too much time abroad and therefore do not truly intend to reside in the US permanently, as required. Travelers with nonimmigrant work visas are cautioned to come prepared with a current job letter or contact information for their employers in case questions are raised. Legal permanent residents should be prepared to answer questions about their intent to remain in the US. While questioning by a USCBP officer can be intimidating, travelers do have a right to speak with a supervisor if an officer appears to be acting inappropriately.

Deferred Action for Childhood Arrival Program Terminated

On September 5, 2017, the Trump Administration announced that the Deferred Action for Childhood Arrival Program (DACA) would be terminated in six (6) months. Created by an Executive Order in 2012, DACA has enabled approximately 800,000 otherwise undocumented individuals who were brought to the US as children to be protected from deportation and obtain work authorization. At the present time there is no indication of how current DACA recipients will be handled once the program has been terminated, raising fears of mass deportations. Many employers and employment groups have expressed disappointment about this new development based on their employment of DACA individuals. In particular, the health care and hospitality industries expect to be widely impacted by the DACA termination. Businesses are now in a position of considering how to fill positions once their DACA employees are no longer employable.

Will Visa Status under the NAFTA Survive?

While the future of the North American Free Trade Agreement (NAFTA) clearly has a great impact on a number of areas, there is a concern about the future of visa categories specifically created by the NAFTA. Citizens of Canada and Mexico may be eligible for nonimmigrant NAFTA Professional (TN) status to work in the US if they will be filling certain positions listed on the NAFTA. These positions include engineers, accountants, nurses, scientists and many other job categories. A TN applicant must have a specific job offer in a listed job category and must have the qualifications outlined in the NAFTA for the particular job. TN status has been a good option for many employers and employees because it can be done very quickly and efficiently at a much lower cost than many of the other visa categories. If NAFTA no longer exists, the TN category will clearly disappear, however there is some thought that even if the NAFTA is revamped in some way, the TN visa may no longer be an option.


Though there is no certain path to reforming US immigration, it is safe to assume that changes will be made in both current law and policy. Employers should be prepared for changes in hiring and may want to consider applying for immigrant status for key employees at this time. Travelers also are cautioned to be prepared to answer questions upon entry to the US.

US Immigration Under The Trump Administration: What We Know And What We Think We Know

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions