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By Angelo A. Paparelli and Manish Daftari
The U.S. election is just over a month away, and recent developments have upended many of our earlier predictions of the likely post-election immigration landscape in the United States.
This article provides an overview of the potential outcomes depending on which parties prevail in the votes for President and control of Congress. We also highlight some key issues that global mobility leaders should be planning for now. For an in-depth analysis, please download the full paper here.
Key Considerations
With the parties’ conventions concluded, both campaigns in full swing, and early voting now underway, several electoral outcomes are possible. Mobility leaders must therefore prepare for all potential scenarios and brace themselves for the new immigration opportunities and daunting challenges that loom on the horizon.
- Will there be an election “trifecta?”
The way forward depends greatly on whether either party wins the presidency and enough down-ballot slots in the House and Senate to achieve a trifecta, i.e., control of both houses of Congress and the White House.
- What role will federal courts play?
Also uncertain is the effect of recent U.S. Supreme Court decisions empowering individual federal judges to interpret and declare immigration law without necessarily deferring to long-standing, or new, immigration agency regulations and policies.
- Enhanced border enforcement – a given
Though rarely in agreement, Republicans and Democrats are nonetheless aligned on the need for significantly enhanced controls over illegal immigration, particularly at the southern border. Despite the failure of a bipartisan border enforcement bill in the current Congress, both parties have promised to redouble efforts to stanch the flow of unauthorized noncitizens into the U.S., particularly with additional limits on the ability to apply for asylum.
What should mobility leaders do now to prepare for the post-election aftermath?
While we wait for the November 5th vote and the certification of final election results, there are several measures which companies, in consultation with their legal counsel, should consider, and if appropriate act on, in anticipation that major immigration changes could occur in early 2025:
- Visa and entry bans
Under a new Trump administration, there is a strong possibility that prior visa and entry bans will be reinstated.
- Temporary Protected Status
For employees who are currently on work permits in the United States under Temporary Protected Status (TPS), there is a risk that a second Trump administration will eliminate existing TPS designations for some countries.
- Prevailing wage changes
An incoming Trump administration may seek to reinstate a regulation under his first term (later rescinded by President Biden) that would have significantly raised prevailing wages for the H-1B, H-1B1, E-3, and PERM programs.
- Possible reversal of Biden and Obama executive actions
Employers should anticipate that if Mr. Trump is elected, several executive actions by Democratic presidents may be at risk of elimination or restriction.
- Possible expansion of Biden and Obama executive actions
If Vice President Harris is elected but control of Congress remains divided or is held solely by Republicans, comprehensive immigration reforms are much less likely.
- Continuing focus on immigration worksite compliance
Whether Republicans or Democrats prevail in November, employers in the U.S. should anticipate that federal immigration authorities will continue to investigate and enforce existing immigration laws in the coming years.
Contact us
For a deeper discussion on this topic, please reach out to your usual Vialto Partners point of contact, or alternatively:
Angelo Paparelli, Partner, Vialto Law (US) PLLC
Manish Daftari, Partner, Vialto Law LLP