HOW TRUMP’S IMMIGRATION ORDERS CAN AFFECT U.S. EMPLOYERS

To fulfill his 2024 campaign promises, President Donald Trump has issued a series of executive orders (EOs) on immigration during his initial weeks in office. Much of their focus has been on border security, removal of undocumented aliens, and birthright citizenship, but these directives could have a significant impact on U.S. employers and their operations.

Although the Trump administration is trying to implement the EOs’ policy changes, delays and challenges have already begun, leaving full implementation uncertain.

This article provides an overview of the major immigration-related EOs issued thus far, as well as the current challenges they face, and insights on the impact PEOs and their clients might expect as a result of the EOs.

BANNING OF BIRTHRIGHT CITIZENSHIP

In what may be the most controversial of his immigration-related actions, President Trump issued Executive Order 14160, “Protecting the Meaning and Value of American Citizenship.” The administration asserts that children born in the United States on or after Feb. 19, 2025, will not have a claim to birthright citizenship if the mother is in the country without authorization or on a nonimmigrant visa and the father is not a U.S. citizen or green card holder.

As expected, litigation ensued, including three federal lawsuits brought by 22 state attorneys general. Judges in these cases have issued nationwide injunctions against Trump’s order. The U.S. Court of Appeals for the First, Fourth, and Ninth Circuits rejected the Trump Administration’s request for an emergency order to lift the nationwide injunctions. Most recently, the Trump Administration requested the U.S. Supreme Court to curb the power of federal judges to issue nationwide injunctions. This appeal aims to limit the scope of injunctions to specific geographic districts or individuals involved in the lawsuits. The Trump Administration hopes to reinforce the executive branch’s ability to implement its policies without being hindered by nationwide judicial orders. The administration’s applications make it more likely the U.S. Supreme Court will provide some guidance on this issue. However, it remains uncertain whether the Court will ultimately address the full legality of the EO.

If upheld, this EO could have a lasting impact on employers as it could lead to:

• Higher visa sponsorship costs
• Potential travel delays for employees on visas traveling with family
• Long-term retention challenges for employees whose children lose lawful immigration status at age 21, especially those from countries with significant green card backlogs like India and China

ENHANCED VISA VETTING AND SCREENING

In Executive Order 14161, “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats,” President Trump ordered the Department of Homeland Security (DHS) and Department of State (DOS) to implement “enhanced vetting” for visa applicants and those already in the country. While not mentioned, this EO may also serve as the basis for a new travel ban.

The EO directs the secretary of state, the attorney general, the secretary of homeland security, and the director of national intelligence to jointly submit a report “identifying countries throughout the world for which vetting and screening information is so deficient as to warrant a partial or full suspension on the admission of nationals from those countries.”

During his first term, President Trump banned travel from many countries (including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) for 90 days, with certain exceptions. The bans were challenged in court, but they were ultimately upheld by the U.S. Supreme Court.

For PEOs and their clients, this EO could result in lengthy visa-processing delays related to background checks for traveling work visa employees, as they undergo administrative processing without any timeline for visa issuance. Additionally, there could be a disruption to business travel for citizens of banned countries already in the United States, as they could be prevented from leaving for fear of becoming stranded outside the country. Finally, this EO would make it difficult for citizens of the countries identified to file extension of status and change of status petitions.

PROTECTING AGAINST INVASION

EO 14159, “Protecting the American People from Invasion,” provides directives across a wide range of immigration programs, while revoking former President Joe Biden’s immigration enforcement priorities. DHS must set new enforcement policies to address illegal entry, unlawful presence, and removal of individuals unlawfully present in the United States. The EO also requires DHS to expand the use of expedited removal, and to limit humanitarian parole, designations of Temporary Protected Status (TPS), and employment authorization. The EO invokes a registration requirement for undocumented aliens, with possible civil and criminal penalties.

In line with this EO, DHS Secretary Kristi Noem announced she is vacating the previous administration’s redesignation of TPS for Venezuela. She later announced the decision not to extend the 2023 Venezuela TPS designation, which is set to expire April 7, 2025. This decision has already been challenged in two lawsuits filed by advocacy groups and Venezuelan immigrants living in the United States. Additionally, attorneys general from 18 states, including California, Massachusetts, and New York, filed an amicus brief in support of the plaintiffs, arguing that Secretary Noem’s decision was “baseless and arbitrary” and Venezuelan TPS holders are a benefit to the states, not a burden.

Secretary Noem also announced her decision to partially vacate a July 1, 2024, decision by former DHS Secretary Alejandro Mayorkas to extend TPS designation for Haiti. She has limited the extension to 12 months, expiring on Aug. 3, 2025. If no decision is made to extend Haitian TPS beyond Aug. 3, 2025, the expiration will become final. Two lawsuits challenging Secretary Noem’s decision argue the reduction in TPS extension is arbitrary and lacks sufficient justification.

The potential impact to PEOs and their clients is significant. Employees authorized to work under humanitarian parole may be unable to renew their parole and related work authorization. Without legal challenges, or work authorization through alternative avenues such as a pending asylum application, these workers may be terminated due to lack of work authorization. Workers from countries facing TPS termination need to monitor pending litigation, including when and how to renew TPS. PEOs and their clients need to monitor employment authorization expiration dates, including automatic extensions, for TPS holders who may be impacted by litigation and conduct I-9 reverifications accordingly.

This EO also directs establishment of “Homeland Security Task Forces” nationwide to remove gang members, criminals, and undocumented individuals. This will likely lead to increased U.S. Immigration and Customs Enforcement (ICE) enforcement actions, including I-9 audits and investigations, employer site visits, and raids at workplaces or within immigrant communities. PEOs and their clients should make sure to have an action plan in place in the event of an ICE enforcement action. This is particularly important for employers in industries that employ large numbers of workers who may be undocumented or who have temporary work authorization. Any action plan should include at the least the following:

• Regularly conducting essential internal audits to review I-9 forms for compliance.
• Training management and staff on proper procedures during ICE actions to ensure lawful interactions with ICE agents.
• Developing a clear communication strategy to address employee concerns and maintain morale.
• Reviewing hiring practices to ensure compliance with federal laws and preparing for potential operational disruptions by having contingency plans in place.

The full impact of the recently issued EOs remains uncertain, but their potential consequences for U.S. PEOs and their clients are significant. It is imperative for businesses to stay informed, proactive, and prepared to navigate the challenges posed by these new immigration policies. By doing so, they can mitigate risks and ensure compliance in an evolving regulatory landscape.

This article is designed to give general and timely information about the subjects covered. It is not intended as legal advice or assistance with individual problems. Readers should consult competent counsel of their own choosing about how the matters relate to their own affairs.