By Angelo A. Paparelli
On January 20, 2025, President Trump issued 26 Executive Orders and additional actions focused on immigration enforcement, with significant impacts on legal, employment-based immigration. The directives include stricter vetting processes, potential delays in visa processing, and heightened scrutiny for foreign workers, especially those from countries facing visa bans. This vetting process will involve not only new visa applicants but also noncitizens in the US who entered on a visa since January 2021.
Employers will face longer wait times, increased administrative burdens, and potential disruptions for workers from certain countries. Additionally, new enforcement measures could require foreign workers to carry proof of lawful immigration status and present it to any immigration officer whom they encounter upon request. While the long-term effects remain uncertain due to potential legal challenges, businesses should prepare by consulting immigration counsel and supporting affected employees.
This article will assess foreseeable changes to the US employment-based immigration system likely to result from these directives and suggest preliminary steps for mobility professionals to consider as developments unfold1.
Presidential executive orders are nothing new (George Washington issued eight of them). An Executive Order (EO) is a directive issued by the President of the United States to manage operations within the federal government. While powerful, the legal effect of an EO is constrained by both Congressional authority and judicial power. Moreover, because many of President Trump’s orders call for action in the future and given that the outcome of pending and anticipated litigation challenging them is uncertain, it is too soon to say what their long-term impact may be. Still, in the near term, the likely changes to employment-based immigration—and the consequences to mobility professionals—may require consideration.
What it says
The EO aims to enhance national security by addressing potential threats posed by foreign nationals seeking to enter or remain in the United States who may engage in terrorism, promote harmful ideologies, or exploit immigration laws for malicious purposes. The focus is on identifying and screening individuals before they enter or while they are in the US to prevent national security threats. The order also seeks to “ensure that admitted [noncitizens] otherwise already present in the United States do not bear hostile attitudes toward its citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists and other threats to our national security.”
The EO establishes a multi-agency effort led by the Secretary of State, in coordination with the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence (collectively, “Agency Leaders”), to “promptly” improve vetting and screening processes for all foreign nationals. This includes reviewing information from foreign countries and re-establishing a uniform baseline for security checks that existed on January 19, 2021 (the end date of President Trump’s first term).
Within 30 days, Agency leaders are directed, among other things, to:
Within 60 days, Agency leaders are directed, among other things, to submit a report to President Trump identifying countries with deficient vetting and screening systems. The report must include (a) a list of countries where vetting is insufficient to ensure security, (b) recommendations for partial or full suspension of nationals from those countries under section 212(f) of the Immigration and Nationality Act (“INA”), and (c) data on the number of nationals from these countries admitted to the US since January 20, 2021, and their subsequent activities.
What it means for mobility
This EO mandates a prompt restoration of enhanced security screenings that applied during President Trump’s first term in office. These screenings are likely to affect foreign nationals applying for immigrant and nonimmigrant visas and admission to the US, and noncitizens on whose behalf US employers will submit new petitions to US Citizenship and Immigration Services (“USCIS”) for extension, change or amendment of nonimmigrant status or adjustment of status to lawful permanent residency. Presumably, given the Biden administration’s final H-1B Modernization regulation, such screenings would likely be conducted by the USCIS Fraud Detection and National Security directorate (“FDNS”) at employer and third-party worksites and at the personal residences of noncitizen sponsor workers who have been authorized to work remotely, as this regulation authorizes.
Mobility professionals should therefore anticipate longer waiting periods for consular visa appointments; an increased number of visa applicants whose applications are placed in “administrative processing” for enhanced security screenings by multiple federal agencies before a visa can be issued; adjudications processing backlogs at USCIS; and more frequent issuance to employer petitioners by that agency of requests for evidence (“RFEs”) and notices of intent to deny (“NOIDs”) any newly-filed immigrant and nonimmigrant visa petitions, as well as notices of intent to revoke (“NOIRs”) previously approved petitions. Moreover, applicants for employment authorization documents (“EADs”) and advance parole travel authorizations could likewise be expected to receive similarly unwelcome USCIS notices.
This EO also sets the stage in 60 days for a restoration of the ban on visa issuance and admission to the US under President Trump’s first term. This “travel ban”, which primarily applied to citizens of majority-Muslim nations and other countries deemed hostile to US interests, was ultimately upheld by the US Supreme Court under INA § 212(f). Any new ban, moreover, would likely include exemptions in the national interest; hence, mobility professionals should be prepared, with the assistance of legal counsel, to document and submit to US consular officers such exemption requests whenever yet-to-be-defined qualifying circumstances would permit.
This EO speaks specifically of the need to engage in extreme vetting of noncitizens who “are already in the United States, are vetted and screened to the maximum degree possible.” One could interpret this as presaging a restoration of an interview call-in process that may resemble the National Security Entry-Exit Registration System (NSEERS) program established in the aftermath of the September 11, 2001 terrorist attacks by the legacy agency, Immigration and Naturalization Service (“INS”), and ultimately implemented by the US Department of Homeland Security (“DHS”). This “Special Registration” program required certain noncitizens (nonimmigrant males who were 16 years of age and older from 25 specific countries) to register with immigration authorities and appear in person for interview and to be photographed and fingerprinted at an agency field office.
NSEERS was predicated on the duty, as a precondition to the requirement, applicable to all noncitizens, that they maintain lawful immigration status, and always carry with them and present upon request their “registration” documents, meaning, the individual’s I-94 admission or green card.
Thus, mobility professionals may wish to consider reminding their noncitizen populations (and family members who are foreign nationals) to maintain in their possession and be prepared to present to immigration and law enforcement officials such “registration” documents upon request2.
Furthermore, mobility professionals should also consider cautioning their noncitizen populations about the potential risks of engaging in public protests or in publishing arguably controversial social media posts. This is because the EO apparently seeks to penalize actions by noncitizens that are perceived as infringing on the rights of US citizens, including freedom of speech and religion, and “recommend[s] enhancements to immigrant assimilation programs to promote adherence to US constitutional principles and identity.” Foreseeably, however, whenever these newly announced directions are fleshed out by the Trump Administration, the federal courts will undoubtedly have the final say on the scope of constitutionally protected activities by noncitizens.
What it says
This EO aims to end birthright citizenship for certain children born in the United States. It does so despite the 14th Amendment to the US. Constitution which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” By focusing on the phrase, “subject to the jurisdiction thereof,” the EO declares that US citizenship should not automatically extend to individuals born in the US if:
1. The mother (defined as “the immediate female biological progenitor”) was “unlawfully present” in the United States, and the father (defined as “the immediate male biological progenitor”) was neither a US citizen nor a lawful permanent resident at the time of the child’s birth, or
2. The mother’s presence in the United States “was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa)” and the father was neither a US citizen nor a lawful permanent resident at the time of the child’s birth.
The EO, however, does not say how government officials would determine US citizenship if the mother is within one of the foregoing categories but the father’s identity is unknown, e.g., in cases of rape by an unidentified assailant or where the father was an anonymous sperm donor. Nor does the EO describe how such a child would otherwise obtain lawful immigration status without departing from the United States.
The policy interpretation declared in this EO is set to take effect on February 19, 2025. It is not retroactive.
The EO further directs the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Commissioner of Social Security to take “all appropriate measures to ensure that the regulations and policies of their respective departments and agencies are consistent with this order, and that no officers, employees, or agents of their respective departments and agencies act, or forbear from acting, in any manner inconsistent with this order.”
Publication of this EO promptly led to the filing of several lawsuits challenging it in various federal district courts across the country, e.g., in suits brought by the American Civil Liberties Union, a coalition of several states, and a multi-party suit. On January 23, 2025, in yet another suit, US District Judge John Coughenour, at the urging of the states of Washington, Arizona, Illinois, and Oregon, issued a temporary restraining order enjoining the EO.
Given the plethora of suits, it is foreseeable that the various federal judges hearing the cases may issue inconsistent rulings, and that the cases will be appealed to the circuit courts and ultimately to the US Supreme Court.
What it means for mobility
Mobility leaders should anticipate that children born on or after February 19, 2025 whose mother is described in either of the two categories of disqualified classes will still be classified as US citizens at birth, unless the Supreme Court rules otherwise. In the meantime, the parent(s) of these children should be urged to apply immediately for US passports on an expedited basis for an additional fee of $60. By expeditiously applying for and receiving a US passport before the federal litigation challenging this EO is ultimately resolved, the child’s status would be declared that of an American citizen. Thus, the State Department and other federal government officials would bear the burden of initiating proceedings and carrying the burdens of proof and persuasion before a federal court that the child should not hold US citizenship. These burdens on the government may prove advantageous to the child in their ability to retain American citizenship.
In addition, mobility leaders may wish to direct the noncitizens in their care to federal laws which—apart from the 14th Amendment—establish a statutory basis for US citizenship to persons born in Hawaii or Alaska. See 8 U.S.C. § 1404, which provides that individuals born in Alaska on or after March 30, 1867 are US citizens at birth, and 8 U.S.C. § 1405, which states that persons born in Hawaii on or after April 30, 1900 are US citizens at birth. These statutes, unlike the 14th amendment, do not contain the assertedly disqualifying phrase, “subject to the jurisdiction thereof.”
What these say
Hiring Freeze:
This Presidential Action implements a temporary freeze on hiring for federal government positions, with exceptions for national security, public safety, and other critical functions. The purpose is to reduce government spending and assess staffing levels within federal agencies. The Action does not specify whether continued hiring of federal employees for immigration adjudicative functions such as visa applications, labor certifications, prevailing wage determinations, or immigration benefits requests would fall within the specified exceptions.
Return to In-Person Work:
This Presidential Action mandates that federal employees return to in-person work at government offices, rolling back remote work policies established during the COVID-19 pandemic. The order emphasizes the importance of physical presence to improve collaboration, productivity, and public service.
Restoring Accountability to Policy-Influencing Positions within the Federal Workforce:
This EO reforms the federal workforce by reinstating rules that make it easier to discipline or remove federal employees in policy-making positions who are deemed underperforming or politically biased. It seeks to ensure that individuals in such roles are held accountable for their actions and align with the Trump Administration’s goals.
What these mean for mobility
Federal directives that order a freeze on hiring and require a return to the office of what is reportedly a substantial cadre of remote workers suggest that the adjudication of USCIS petitions and applications requesting immigration benefits and Department of Labor (DOL) PERM labor certifications and prevailing wage determinations may take longer and that processing backlogs could grow3.
These personnel actions may likewise also affect the State Department and delay the scheduling of consular visa interviews, particularly given the anticipated slowdown in consular operations flowing from the EO “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” discussed above.
Moreover, the “Restoring Accountability” EO will likely motivate federal immigration officials in policymaking positions to proceed cautiously on announcing any expansive or welcoming changes until White House positions on employment-based immigration solidify.
Notwithstanding the previously discussed EO’s mandate for a review of all visa categories to identify and prevent misuse by foreign actors harmful to US security, economy, politics, or culture, there may be reason, however, for cautious optimism. Recent remarks of President Trump announcing a $500 billion investment in artificial intelligence suggest that he remains supportive of employment-based immigration.
What it says
This EO focuses on enforcing US immigration laws and prioritizing national security and public safety. While it does not expressly address legal, employment-based immigration, the implementation of this mandate could well cause hapless noncitizens to fall out of legal status and thus make the work of mobility professionals even more challenging. Key provisions of the EO that could conceivably impact employment-based, legal immigration include:
A. Revocation of prior policies: Rescinds several executive orders from the Biden Administration related to immigration enforcement, asylum processes, and family reunification, replacing them with stricter enforcement priorities, and directs Agency Leaders to take more restrictive actions, including but not limited to:
B. Enhanced enforcement: Directs agencies to:
C. Identification and penalties: Mandates identifying unregistered noncitizens, imposing civil and criminal penalties, designating the failure to present registration documents such as I-94 admission records and green cards as an enforcement priority, and ensuring compliance with immigration reporting requirements.
D. Detention and removal: Calls for “expedited removal” processes for noncitizens unlawfully present in the in the United States, apparently including any noncitizen unable to present evidence of lawful presence, i.e., their registration documents, who are encountered within a “reasonable distance” from the US border, interpreted US Customs and Border Protection (“CBP”) as 100 air miles of the US border under 8 C.F.R. § 287.1. Noncitizens encountered by CBP who have been granted humanitarian parole in the last two years4, such as citizens of Ukraine, Cuba, Haiti, Nicaragua, and Venezuela may be particularly at risk of having their parole terminated and being classified by DHS for expedited removal under INA § 235(b)(1)(A)(iii)(II) in the exercise of “enforcement discretion,” as announced in a January 23, 2025 memorandum from Acting Secretary of Homeland Security Benjamine C. Huffman to all DHS immigration agency heads (Huffman Memo”).
E. Ban on visas for “Recalcitrant Countries” refusing to accept the return of their citizens. Requires effective implementation of the sanctions provided by INA § 243(d), 8 U.S.C. § 1253(d), to ensure that diplomatic efforts and negotiations with foreign states include the foreign states’ acceptance of their nationals who are subject to removal from the United States.
The overarching goal is to establish stricter immigration enforcement policies, reduce illegal immigration, and prioritize the security and well-being of US citizens.
What it means for mobility
The new constraints and enforcement measures mandated by this EO will likely make the human resources function for corporate employers more challenging.
By requiring that humanitarian parole be granted only on a case-by-case basis, restricting TPS designations, and declaring that employment authorization documents (“EADs”) shall not be issued to unauthorized noncitizens, the EO will likely restrict what has been a promising recruitment path for employers under the Biden Administration.
The EO’s call for the creation of HSTFs in each of the states to combat human trafficking may pose enforcement exposures and lead to increased investigations of employers in certain industries, e.g., meatpacking, agriculture, and manufacturing.
The EO’s proposed expansion of expedited removal, apparently within 100 air miles of the US border, and its focus on enforcement of the requirement that noncitizens carry evidence of registration, i.e., I-94 admission records and green cards, portend the possibility that some unfortunate noncitizen employees or their immediate family members who fail to carry and proffer proof of registration may be denied the opportunity to contest their removal before an immigration judge, and instead be sent abroad quickly by CBP. Moreover, the Huffman Memo’s instruction that DHS immigration officers consider terminating humanitarian parole and exercising enforcement discretion to invoke expedited removal authority could lead to the loss of current noncitizen employees who possess EADs and may be encountered by DHS.
The EO’s mandate to more vigorously enforce the “recalcitrant-countries” visa ban is especially ominous in light of the recent passage of the Laken Riley Act, which—once signed by the President—would provide expedited scheduling and legal standing in federal court to any state attorney general, or other authorized state officer, alleging a violation by the Secretary of State of the INA § 243(d) requirement to discontinue granting visas to citizens of such countries. According to a July 11, 2024 letter sent by 17 members of the House of Representatives, China “is one of 13 countries [including reportedly Israel and India, among others] considered uncooperative or ‘recalcitrant,’ systematically refusing or needlessly delaying the repatriation of their citizens.” Given the high concentration of nonimmigrant workers employed by US-based companies who hail from these countries, any wholesale ban on US visa issuance would likely disrupt business operations.
As can be seen, President Trump’s “day-one” mandate promises to comprehensively overhaul US immigration programs. While awaiting the outcome of the foreseeable litigation challenging his directives, mobility leaders should consult with their immigration counsel and begin to assess the impact on business operations and continuity. The affected noncitizen population of workers and families in their organizations will benefit from assurances that the company will keep them informed, advise them on precautions, and speak up or litigate in their support or defense if necessary.
1. Because this article is focused on employment-based immigration, it will not address executive orders to deploy US troops to the southern border, resume completion of the border wall, suspend the refugee resettlement program, or overhaul the asylum process.
2. See INA § 264(e) [8 U.S.C. §1304(e)] which provides:
Personal possession of registration or receipt card; penalties.–Every noncitizen, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of noncitizen registration or noncitizen registration receipt card issued to him pursuant to subsection (d). Any noncitizen who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.
3. For example, according to the General Accounting Office 38% of USCIS employees work remotely as of February 2024.
4. The number of humanitarian parolees allowed entry to the US is substantial, as USCIS has reported: In FY 2023, USCIS supported the Biden-Harris Administration’s efforts to establish lawful pathways that allow for the safe and orderly processing of individuals into the United States through the implementation of new processes for Cubans, Haitians, Nicaraguans, and Venezuelans (CHNV); and by maintaining support for the Uniting for Ukraine (U4U) process. As of the end of FY 2023, more than 150,000 Ukrainian nationals and their immediate family members had entered the United States under the U4U process and nearly 238,000 individuals had entered through the CHNV process.
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