Summary of Immigration-Related Executive Orders

On January 20, 2025, the Trump Administration issued multiple immigration-related Executive Orders focusing on border security, rolling back humanitarian programs, increased vetting of visa applicants, and an attempt to end birthright citizenship. In addition, many executive orders issued by President Biden were rescinded. Below we discuss some of the most salient impacts to employers with foreign national talent.

Rescission of Prior Executive Orders

Multiple Biden-era executive orders related to employment-based immigration were immediately rescinded. One of the rescinded EOs sought to streamline various legal immigration processes by reviewing and modernizing prior Trump-Era (2017 - 2020) immigration policies. That EO resulted in updates to policies by U.S. Citizenship & Immigration Services (USCIS) aimed at expedited processing of adjudications, reduced issuance of requests for evidence and notices of intent to deny, and longer validity for employment authorization documents (EADs). The recission of this EO potentially signals the Trump Administration’s renewed focus on using bureaucratic roadblocks to slow down processing. 

A more recent Biden-era EO that was rescinded focused on the importance of artificial intelligence and sought to expand options for foreign talent with STEM degrees. This EO directed the Department of Homeland Security and the Department of Labor to review and identify pathways within the current U.S. immigration system to advance the U.S.’s role in AI development and attracting global talent. In particular, USCIS was in the process of modifying policies related to how temporary visa categories like the O-1A for individuals with extraordinary ability, and permanent visa categories like the EB-1 for individuals with extraordinary ability or the EB-2 for individuals eligible for a national interest waiver (NIW), may be leveraged to encourage talent in these fields. A recent update to the J-1 skills list, which enables a larger population of J-1 visa holders to directly apply for other visas without first returning home, was a direct result of this EO. 

The rescission of these EOs does not change any immigration regulations. However, it does signal that the second Trump Administration is focused on a return to the policies of the first administration, which often resulted in decreased efficiency for employment-based sponsorship. 

Increased Vetting

Another EO reinstates the focus on “increased vetting” that was a hallmark of the first Trump Administration.  According to the EO, enhanced vetting and security screening is necessary for individuals seeking visas, admission to the U.S., and/or immigration benefits. These vetting activities are targeted at ensuring individuals are not security or public safety threats.  It is expected is that applicants for visas and admission (or readmission) to the U.S. may soon start to see additional security questioning and vetting procedures. During the first Trump administration, examples of increased vetting included additional questions on application forms, lengthened visa issuance processing times caused by in-depth background checks (administrative processing), travel bans, and requests for evidence.

Visa applicants and employers can expect to see many of these policies implemented immediately, which may result in processing delays and even possible denials. The EO also directs various agencies to -- within 60 days -- identify countries that may post a security risk and for which a suspension of admission may be warranted.  This directive signals a potential return of policies similar to the travel ban that was implemented in 2017 against several countries.

Birthright citizenship

The EO titled “Protecting the meaning and value of American citizenship” attempts to redefine the language in the 14^thAmendment of the Constitution, which provides for birthright citizenship – meaning U.S. citizenship is conferred upon individuals who are physically born within the borders of the United States or its territories. The new EO challenges this historical precedent, and seeks to limit citizenship to children of at least one U.S. citizen or lawful permanent resident (green card holder), regardless of physical presence. Based on the text of the EO, citizenship would also no longer be granted children born to individuals on temporary visas, including employment-based visas. The EO is scheduled to take effect on February 19, however a legal challenge has already been filed. Although an EO targeting birthright citizenship was anticipated based on comments by President Trump and his advisors, it was expected to be limited to children of immigrants who were present in the U.S. unlawfully. The historical interpretation of birthright citizenship is generally agreed upon by legal scholars, so it remains to be seen whether this EO will survive judicial scrutiny, or in what form. 

Other Impacts

Two of the executive orders, entitled “Securing Our Borders” and “Protecting the American People Against Invasion”, contain measures that will meaningfully impact the work authorization of large numbers of people currently employed in the U.S.  Such measures include:

• Termination of categorical humanitarian parole under the Cuba-Nicaragua-Haiti-Venezuela program implemented by the Biden administration.
• Re-examination of Temporary Protected Status grants to ensure they “are appropriately limited in scope and made for only so long as may be necessary to fulfill the textual requirements of that statute”.
• A measure “ensuring that employment authorization is provided in a manner consistent with [existing employment authorization regulations], and that employment authorization is not provided to any unauthorized alien in the United States.”
• A directive to “take all appropriate action. .  .to encourage aliens unlawfully in the United States to voluntarily depart as soon as possible.”
• Increased use of detention pending removal from the United States.

Several executive orders were also issued regarding general administrative agency hiring and staffing.  While these directives do not specifically target the immigration agencies, they will be impactful.  Effective as of January 20^th, a freeze was placed on all hiring at the Federal civilian level.  Additionally, a separate EO directs all Federal employees to terminate remote work arrangements and return to an office as soon as is feasible.  Practically speaking, this means that if any current immigration officers are terminated or depart voluntarily, the agency cannot currently backfill that role. In addition, many USCIS officers have been working remotely since the start of the COVID pandemic. A large departure of officers who choose to leave due to the return-to-work policy (or who depart or are terminated for any other reason) will result in a reduction in officers available to adjudicate visa applications and other immigration benefits.  Such a reduction in staff will necessarily lengthen processing times. When hiring resumes, employers may expect to see inconsistent adjudications due to the training of new officers.

As expected, this will be an evolving environment. Seyfarth will continue to monitor upcoming developments as they occur, both with respect to these EOs as well as changes to the worksite enforcement climate.

For additional information, we encourage you to attend our upcoming program, "Compliance Chatter," where we will discuss ICE worksite enforcement actions, increased I-9 audits and FDNS site visits, and more. For information and registration, please visit the program page here: Compliance Chatter, January Session.

For specific questions, please reach out to any member of the Global Immigration & Mobility team.