President Donald Trump on his first day in office signed immigration executive orders focusing on border enforcement, removal, asylum, and birthright citizenship.
On January 20, 2025, following his inauguration, President Trump signed off on several dozen executive orders and executive actions. While none of them center on business immigration, several are likely to have direct implications for employers and their employees. As discussed in this LawFlash, some of the orders are designed to take immediate effect while others are policy directives to be implemented over time.
We cannot and do not seek to predict the extent to which, or the ways that, the various agencies touching on business immigration will put these orders into action. Rather, the intent of this LawFlash is to provide employers with additional context in which to understand the orders and to be prepared for changes that may arise. To the extent that this LawFlash anticipates the possibility of changes in government policy and procedure, those assessments are informed by both the text of the executive orders and by the immigration policies of the first Trump administration; many of the personnel in charge of immigration policy in the new administration are veterans of the first Trump administration. Accordingly, where appropriate, this LawFlash highlights policies from the first administration that are consistent with the recent executive orders and are, therefore, policies that employers might want to anticipate and prepare for in the new administration.
The executive orders most relevant to employers are as follows:
This order instructs relevant agencies to “vet and screen to the maximum degree possible” all noncitizens who intend to be admitted or are already inside the United States, with a focus on individuals from regions or nations with an identified security risk. This order largely mirrors a series of proclamations and orders issued during the first Trump administration.
It remains to be seen how the language in this order will be interpreted and applied; however, in the first Trump administration, the nearly identical policy was used to impose additional documentary and evidentiary requirements for consular visa applications and requests for immigration benefits filed with US Citizenship and Immigration Services (USCIS), including H-1B, L-1, TN, and other nonimmigrant petitions and adjustment of status applications.
Employers and their employees often found it challenging to satisfy the new standards and to respond successfully to requests for additional information. At consulates, enhanced vetting and screening policies prohibited consular officers from waiving in-person interviews. Consequently, consular appointments became mandatory for all visa applicants, resulting in difficulty and delay in processing visa applications. At the USCIS, enhanced vetting manifested in significant increases in requests for additional evidence, particularly for H-1B and L-1 nonimmigrant petitions, and much more restrictive application of immigration laws and regulations generally than in prior administrations.
Given the close parallels between the current executive order and its counterparts from the first Trump administration, and the continuity in personnel and policy pronouncements from the first Trump administration into the current administration, employers should prepare for the possibility that requests for immigration benefits both at consulates and at the USCIS may encounter similar challenges going forward.
The enhanced vetting and screening mandate has the potential to impact employment-based green card processing. In the first Trump administration, additional documentary requirements and a slowdown in processing times for most family-based green card applications resulted in an unprecedented number of family-based immigrant visa numbers going unused under the fiscal year quota. By operation of law, these unused numbers transferred to the employment-based immigrant classifications, resulting in a sudden temporary window in which employment-based cutoff dates advanced dramatically before retrogressing almost as significantly.
This created an opportunistic bubble for many green card applicants on the waiting list, but it also sowed confusion and required employers and their employees to quickly adapt their immigration strategies to the fluid environment. Employers and their employees should factor the possibility of a repeat of this dynamic into their strategies for the timing of nonimmigrant and immigrant visa applications.
In the first Trump administration, implementation of the enhanced vetting and screening policy removed from USCIS officials the discretion to waive some in-person interviews and included a requirement that every employment-based adjustment applicant undergo an in-person USCIS interview. This requirement led to significant delays in the processing and final adjudication of green card applications.
In light of the recent executive order, employers and their employees should take into account the possibility that timelines for the adjudication of adjustment of status applications will take longer than previously.
The enhanced vetting and screening policies and procedures in the first Trump administration manifested in additional documentary and evidentiary requirements, increased frequency of background checks, consular delays, and greater restrictiveness and uncertainty in the adjudication of requests for an immigration benefit. Employers and their employees should consider the possibility that this dynamic will repeat.
Organizations As Foreign Terrorist Organizations and Specially Designated Global Terrorists
This executive order, among other actions, orders that within 14 days, the attorney general and the secretary of homeland security shall take all appropriate action, in consultation with the secretary of state, to make operational preparations regarding implementation by the president of the Alien Enemies Act.
Should the president invoke the Alien Enemies Act, it would empower him to unilaterally order or permit the arrest, imprisonment, or removal of any citizen of a country that the president declares to be an “enemy nation” or a nation that has invaded the United States without trial or hearing. Morgan Lewis will continue to monitor developments in this area.
Protecting the Meaning and Value of American Citizenship
This executive order denies “birthright citizenship” to children born in the United States if the child’s mother was either unlawfully present in the United States or was present in the United States in temporary nonimmigrant status, and whose father was not a US citizen or lawful permanent resident at the time of the child’s birth. The order is intended to take effect in 30 days.
Implementation of the executive order faced multiple challenges in federal court on January 21, 2025, by coalitions of state and city governments and by civil rights groups. Plaintiffs in these lawsuits argued that the executive order is unconstitutional. On January 23, the first federal court to issue a ruling on these challenges temporarily blocked President Trump’s executive order as unconstitutional. The Trump administration plans to challenge the ruling in court. The issue is likely to remain open and active in courts and state legislatures for the foreseeable future.
In the interim, it remains to be seen whether the administration will take steps to implement elements of the executive order administratively, notwithstanding the court decisions. Doing so could impact foreign national employees of US employers.
The order applies to children born in the United States to parents who are lawfully in the United States pursuant to work or dependent visas—for example, the US-born child of two parents, one of whom is in H-1B status and the other who is H-4 status. A child born in the United States who is not deemed to be a citizen will be ineligible to receive a US passport, Social Security Number, federal benefits, and other indicia of citizenship. At the same time, there is no mechanism for such a child to qualify as a lawful nonimmigrant dependent of the parent.
Employers may wish to prepare for the possibility that foreign national employees on work visas will find this situation untenable, leave their employment, and depart the United States.
Realigning the United States Refugee Admissions Program
This executive order, among other actions, suspends the US Refugee Assistance Program (USRAP) on January 27, 2025, and halts the admission of refugees until further notice. Individuals admitted in refugee status have been granted work authorization. Some businesses, particularly in industries such as food processing, logistics, and agriculture, that rely on refugees to fill vacancies may face challenges in doing so going forward.
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