The Election Aftermath: Forecasting and Preparing for Potential Shifts in U.S. Immigration

Regardless of the election results, the immigration system is expected to become more complex, including increased fees, burdensome demands for evidence, and delayed processing times.

Disclaimer: The views and opinions expressed in this article are solely those of the authors and do not necessarily reflect the official policy or position of WERC.

As the November 2024 elections approach, mobility leaders should anticipate changes in U.S. immigration policies. The presidential election and Congressional balance between the two political parties will drive these changes. Regardless of the results, the immigration system is expected to become more complex, including increased fees, burdensome demands for evidence, and delayed processing times. 

If One Political Party Controls the White House and Congress

If a single political party controls the presidency and both houses of Congress, mobility leaders should expect immigration reform legislation. Recent attempts to reform immigration have stalled because of disagreements between the two parties. If one political party controls both, then this provides an open avenue for change. There are issues on each side of the aisle driving the need for these changes, including tougher border controls preventing the entry of undocumented immigrants. Less certain, however, is if friendly reforms to employment-based immigration will pass. 

If Democrats Control the White House and Congress

If President Biden is reelected and the Democrats take control of Congress, new immigration laws could:

• Make it easier for certain groups to become green card holders or citizens, including adult children of work-visa holders, certain workers in the agriculture and health care fields, Deferred Action for Childhood Arrivals (DACA) recipients, and other undocumented citizens (including parents of U.S. citizens and green card holders).
• Create more opportunities for work visas and green cards for STEM workers, especially in emerging technologies like artificial intelligence and advanced STEM fields.
• Remove per-country limits on immigrant visas, which would benefit foreign nationals from India and China the most. However, this may slow down green card approvals for the rest of the world unless it is accompanied by an increase in the annual visa quota.
• Recapture of unused prior years’ immigrant visas.
• Increase the number of H-1B visas and expand protections to the employees through longer grace periods, expanded job portability, increased worksite enforcement of labor laws, and more whistleblower protections.

Overall, under a Democratic administration, we can expect a focus on reducing wait times for immigration benefits requests to U.S. Citizenship and Immigration Services (USCIS), making it easier for certain groups to get work visas and green cards, and H-1B visa reform. Mobility leaders should also expect a Democrat-led government to keep a close eye on businesses to ensure worksite compliance. 

If Republicans Control the White House and Congress

If former President Trump returns and the Republicans gain control of Congress, likely immigration reforms are outlined in the legislative recommendations in Project 2025’s “Mandate for Leadership: The Conservative Promise.” Its legislative recommendations would:

• Combine immigration-related agencies into one cabinet-level agency, streamlining the Department of Homeland Security. 
• Formalize legal recognition of USCIS’s Fraud Detection and National Security Directorate (FDNS) and grant FDNS veto power over petitions and applications requesting immigration benefits.
• Refocus USCIS to a “vetting” agency that screens out (i.e., is inclined to deny) petitions and applications deemed unworthy or a threat to national security or public safety.
• Classify USCIS as a “national security-sensitive agency” and USCIS employees as holding “national security-sensitive positions.” If enacted, USCIS employees would need security clearances, and many D.C. officers would be required to move to new locations (or quit). The result could be staffing challenges and slower processing times.
• Issue H-1B visa rules aimed to attract top talent with higher pay, increase protection for U.S. workers, and boost the economy without hurting job markets. If enacted, also expect significantly raised prevailing wages for certain temporary visa categories as well as PERM labor certification cases.
  Increase protections against fraud for temporary work visas, with particular focus on “unscrupulous immigration attorneys” and law-flouting employers “to ensure that no American citizen is discriminated against … in favor of a temporary or foreign worker.” Former President Trump also said In a recent Time magazine interview that he intends to institute the largest deportation operation in American history, an initiative that would likely create a bottleneck in detention space, a problem that would require the building of mass deportation camps.
• Repeal humanitarian-based forms of immigration relief like Temporary Protected Status (TPS) designations and crime victim visa categories (T and U visas).
• Permanently authorize E-Verify and require that it be phased in as mandatory for all employers.
• Restore the Trump administration’s public charge regulation, a rule rescinded by the Biden administration.
• Impose new constraints on presidential power to authorize entry of individuals and groups under the parole authority.
• Place new limits on the grant of employment authorization and reduce the classes of noncitizens eligible for work permits.
• Authorize state and local law enforcement of immigration and border security laws and eliminate “sanctuary cities.”
• Enhance scrutiny of “national security-vulnerable visa programs,” including the repeal of the Diversity Lottery immigrant visa program, and new restrictions on the F-1 (student), and J-1 (exchange visitor) visa programs.
• Reduce (or eliminate) visas issued to students from unnamed “enemy nations.” This might be coupled with a restoration of the Trump administration’s travel ban, which mostly affected citizens from Muslim countries.
• Create a merit-based immigration system that awards visas only to the “best and brightest” and limit family immigration by focusing only on the nuclear family and ending “chain migration.”
• End DACA processing: Without staff processing applications and renewals, at least 500,000 DACA beneficiaries will not have any form of work authorization or legal protection. 

Under a Republican administration, likely policies will emphasize immigration enforcement and protection of the U.S. labor market. This could mean more delays in processing cases by USCIS and U.S. Consulates (similar to what happened under the prior Trump administration). There would likely also be more requests for evidence (RFEs) and petition and application denials, especially for H-1B and L-1 visas. These policies may well discourage companies from hiring foreign workers. 

If Political Control Is Divided

If the November elections keep control of Congress divided, then anticipate immigration changes through executive actions, regardless of who wins the presidency. Additional changes will likely arise through the publication of regulations, the issuance of “subregulatory” agency policy guidance, and policy manual updates. Some of the expected changes would likely be challenged in court as requiring legislation instead of presidential or administrative agency actions. 

If former President Trump is reelected, mobility leaders should expect disruptions to the functioning of the immigration system. His political appointees would likely serve an oversight role to assure that career officials adhere as much as legally possible to the president’s directions.

If President Biden wins a second term, mobility leaders will likely see a continued focus on rulemaking, policy guidance, policy manual updates, and similar subregulatory measures. These would likely include:

• DOL’s expansion of Schedule A shortage occupations in STEM and non-STEM positions, which avoids the PERM labor certification recruitment process.
• A more robust stateside work visa reissuance program. 
• Reevaluation of the J-1 Skills List and greater availability of the J-1 visa category for researchers (including in commercial applied research fields) and for workers with advanced STEM skills, AI, and critical emerging technologies.
• USCIS’s modernization of its adjustment of status regulation, expansion of eligibility criteria for employment-based benefits, and the possible reduction of case processing times if online filing and automation programs improve.

Federal litigation challenges and court rulings, however, have blocked many immigration-related executive actions. This pattern will likely also persist no matter the outcome of November’s elections.

How Employers Can Prepare for Potential Immigration Impacts If There is a Change in Administration
The biggest changes in the immigration landscape will likely occur if the Republican party wins a congressional majority and the White House or if there is a divided congress and former President Trump is reelected. 

Changes are expected to happen within the first six to eight months. Companies may want to consider preparing proactive preliminary strategies now by identifying the population of employees that may be impacted. This will likely include the following:

• Employees who may be impacted by future visa and entry bans. Based on the previous bans, these countries are Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. The list might also include new additions like Palestine.
• Employees who are on TPS and DACA status.
• Employees who are on H-1B or L-1 status and have visa stamps that will be expiring within a year.

While we are still months away from the presidential elections, it is already clear that immigration policy will look substantively different depending on election results. In the meantime, companies should work closely with their immigration counsel and prepare contingency plans. 

Angelo Paparelli is a partner with Vialto Law (US) PLLC, licensed to practice law in California, New York, Michigan, and the District of Columbia. Contact him at angelo.paparelli@vialto.com. 

Manish Daftari is a partner with Vialto Law LLP (Canada), licensed to practice law in California. He brings over 20 years of immigration law experience and currently oversees the U.S. immigration services program for Vialto Partners. Contact him at manish.daftari@vialto.com.

Mayreni Heredia is a business immigration attorney licensed to practice law in the state of New York. Contact her at mayreni.heredia@vialto.com. 

Ashlee Drake Berry is a business immigration attorney licensed to practice law in five U.S. jurisdictions. Contact her at ashlee.d.berry@vialto.com.