The presidential inauguration will be here before we know it, and HR leaders have much to prepare for, including potential immigration changes.
Immigration will likely be one of the Trump administration’s first targets. As such, HR teams should expect increased scrutiny on work authorization requests of foreign-born employees and an increase in immigration enforcement that could lead to deportations, experts told HR Brew.
“[Trump’s team], right now, they’re planning furiously to start taking action immediately in January,” Kate Lincoln-Goldfinch, an Austin, Texas-based attorney who represents immigrants, told HR Brew. “Similarly, everyone else needs to be planning and preparing and not just waiting to see what they do. We know what they’re going to do. We’ve been through this before.”
What to expect. Experts HR Brew spoke with said HR teams can expect an increase in immigration enforcement, including audits of employment documentation or raids.
They should expect increased scrutiny of work authorization requests, for both new and existing employees. Denials for H-1B visa applications, for example, rose as high as 24% in fiscal year 2018, during Trump’s first administration, before falling to 3.5% in fiscal year 2023, according to the National Foundation for American Policy.
Caroline Tang, an attorney and immigration shareholder at employment law firm Ogletree Deakins, said that during the first Trump administration there was a dramatic increase in requests for additional evidence from Immigration Services for work authorization requests like H-1B visas.
“Even if it was an extension [or] renewal of status for an employee that'd been with the company for a very long time, they would still issue these requests and ask a lot more questions about it. And that would slow down the process,” she said. The potential slowing down of the application process may discourage employers and foreign-born workers from applying.
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Time to prepare. HR leaders should take stock of their foreign-born workforce.
“[HR pros] should conduct a thorough review of their current foreign national employee population and assess any plan transfers of employees to the US in the coming months, and for any employees anticipated to need new visas or transfers in 2025 and if they initiate those applications now, it’ll help avoid potential delays and the stricter scrutiny that will arise under the next administration,” Taylor Lewellyn, a legal editor at Brightmine, said.
They should also ensure that their compliance practices, particularly with I-9 employment eligibility forms, are up to date and practiced routinely. I-9 audits are expected to increase once Trump is in office. HR teams should ensure that their documentation process is meticulous, and that staff are properly trained in the forms’ preparation and maintenance, to avoid making mistakes or errors that could land them in trouble. They should also practice self-audits at least once annually.
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Similarly, employers should have a response plan in place should immigration agents try to conduct raids. A response plan can include checking agents’ warrants, establishing policies on whether agents are permitted in public or non-public areas, and designating trained representatives to interact with agents, like a high-level HR staffer who is responsible for I-9 forms and other employment authorization documents. HR pros should also contact their legal counsel immediately if authorities do arrive.
Who to talk to. HR leaders should work with their immigration counsel, all experts recommended.
“I think the best thing that HR can do is have a good lawyer on your side,” Lincoln-Goldfinch said. “Whether you’re looking to do a self audit, you’re looking to protect, you’re looking to get better outcomes on your immigration cases—all of that stuff requires good lawyers.”
They should also inform their fellow executives on how changing regulations may impact their foreign-born employees.
“[HR] shouldn’t assume that their executives are necessarily thinking about this, or aware of how this is going to impact their population,” Tang said. “A lot of times executives see their employee population, and they just sort of like, see people without really thinking about where people are coming from. And so some execs may need a reminder of: we do have a population with sponsored foreign national employees, and right now they’re feeling concerned about this.”
What to recommend to employees. HR teams should also encourage foreign-born employees to proactively prepare for challenges. For example, they can ask current foreign-born employees to renew their visas as soon as possible to avoid backlogs, and educate them on their rights, with resources like “know your rights” cards.
Many immigrants are fearful, and may appreciate support or clarity from their employer.
“It’s affecting morale for employees who are affected,” Lewellyn said. While HR cannot ignore or disobey the law, she said they can help employees by being “as transparent as possible at the macro level, and then be discreet and maintain confidentiality as much as they can when it comes to individual employees and their situation.”
