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How Immigration Law would change in the face of a Trump Re-election.

A hot topic which many of our clients have been asking is how to prepare if President Trump is re-elected to a second term. It is no secret that President Trump is not a fan of immigration. In his first term, he tried to limit access to visas for a wide range of people, both legal and illegal. We believe that this trend will mostly continue if he is reelected. Most of the restrictions would be focused on border control and illegal immigration but we do believe that a fair number would also affect legal immigration. Here is a list of issues we have found on various social media sites.

H-1B Visas Would Face New Restrictions

If Donald Trump is reelected, companies should expect new restrictions on employing foreign-born scientists and engineers in H-1B status. After he took office in 2017, Trump’s immigration policies increased the denial rate for H-1B petition for initial employment (typically new employees counted against the annual H-1B cap) to 24% in FY 2018 and 21% in FY 2019. In 2020, a legal settlement forced USCIS to end several methods of adjudication which were counter to legal adjudication, causing denial rates to plummet to 2% by FY 2022.

H-1B petitions for continuing employment rose to 12% in FY 2018 and FY 2019. Those petitions were usually extensions for existing employees at the same company. The denials caused employees who could not obtain extensions to leave the United States. The legal settlement resulted in H-1B petitions for continuing employment to decline to 2% by FY 2022.

We believe that Trump officials in a new administration would direct USCIS adjudicators to act more restrictively and as a result, denial rates would increase. Even successful lawsuits could leave employers with the policies in place for years, which happened after Trump officials restricted H-1B petitions in 2017.

In October 2020, the Trump Department of Labor published a separate interim final rule designed to price most H-1B visa holders out of the U.S. labor market by significantly increasing the required minimum wage. “Under the new DOL mandated minimum salary, an employer in the San Jose, California area would pay an electrical engineer at Level 4 nearly $85,000 (or 53%) above the market wage, as indicated by a private wage survey, and 54% above the market wage . . . at Level 1,” according to a National Foundation for American Policy.  Research shows H-1B restrictions lead to companies sending more jobs, resources and innovations outside the United States. The results demonstrate an important unintended consequence of immigration restrictions: the movement of jobs and talent abroad, with major implications for U.S. competitiveness.

As president, Donald Trump used the authority in 212(f) of the Immigration and Nationality Act to restrict the entry of immigrants and temporary visa holders. In April 2020, Trump used section 212(f) to issue a proclamation that suspended the entry of immigrants, including employment-based immigrants. Only the spouses and children of U.S. citizens were exempted.

In June 2020, Trump used his authority to issue a separate proclamation to suspend the entry of H-1B, L-1 and other temporary visa holders. The courts ruled that the proclamation exceeded the president’s authority, but the ruling did not have a significant practical impact because Covid-19 limited visa processing at U.S. consulates. Such proclamations could block future H-1B and L-1 visa holders from entering the United States.

If Donald Trump wins the 2024 presidential election, employers should expect policies restricting H-1B visa holders and employment-based immigrants. They should also anticipate other policies, such as banning the entry of immigrants and temporary visa holders from many Muslim-majority countries.

Other effects of a Trump re-election include:


  1. Updates to the annual eligible country lists for H-2A and H-2B temporary worker visas could be suspended. Most populations would thus be excluded from “filling critical gaps in the agricultural, construction, hospitality, and forestry sectors.”
  2. If US citizens live with anyone who is not a US citizen or legal permanent resident, they may be barred from qualifying for federal housing subsidies.
  3. States may be forced to share driver’s licenses and taxpayer identification information with federal authorities, or risk critical funding.


We quote a study that further says that a Trump administration might cut off legal immigration, which includes “high-skilled and temporary employment, family reunification, and humanitarian protection.” Visa eligibility may be restricted by country. The new administration could suspend the issuance of immigrant visas, nonimmigrant visas, or all visas if a country is categorized as “recalcitrant or uncooperative regarding the receipt of deported nationals.”


“As of June 2020, 13 countries–including China, Russia, India, Cuba, and Eritrea–are classified as recalcitrant, many of which comprise the largest origin countries for U.S.-based international students, foreign high-skilled workers, or family reunification beneficiaries,” the study says. “Leveraging entire visa categories as collateral in foreign policy negotiations would result in aggressive restrictions on legal immigration. Rather than holding the noncompliant governments responsible, these restrictions would only punish the country’s nationals and the American families, universities, and businesses that rely on them.”

The study says that these proposals “mark a significant divergence from traditional conservative immigration priorities like promoting merit-based immigration, fostering assimilation, and enhancing interior enforcement,” and could “cripple the existing immigration system.”


In a recent interview with the former President, we note that he is becoming more militant and more martial in what he is talking about immigration. He is calling for nothing less than the largest deportation in American history. He gave some more details. He specifically used these numbers; 15 to 20 million people is what the former president told “TIME” magazine He said he would use local law enforcement and the military, National Guard, didn’t really get into too many details about that. But he was asked specifically about how that comports with U.S. law, which says the military cannot, in fact, be used to be deployed against civilians. He stated that the illegals in the US aren’t civilians. These are people that aren’t legally in our country. This is an invasion of our country. I can see myself using the National Guard. And, if necessary, I would have to go a step further.


This is invoking, obviously, martial powers in a way that we haven’t really seen in this issue at all. Now, as for would he have mass detention camps, he said possibly, but he doesn’t think they’re needed. I will say, right now, the U.S. is actually allowing for more bed space for migrant detention.


Legal Immigration

Trump said last year that he would seek to end automatic citizenship for children born in the U.S. to immigrants living in the country illegally, an idea he flirted with as president. Such an action would run against the long-running interpretation of an amendment to the U.S. Constitution and likely trigger legal challenges. During his first term, Trump greatly reduced the number of refugees allowed into the U.S. and has criticized Biden’s decision to increase legal immigration.



In a shift from his earlier stance on immigration, former US President Donald Trump has promised to grant automatic green cards to foreign students who graduate from US Colleges. He says this is aimed at preventing them from returning to their home countries. This departure from anti-immigrant rhetoric comes ahead of the November presidential election, where immigration is a key issue.