The incoming Trump administration has announced drastic changes in U.S. immigration policy, which are already beginning to reshape the landscape of immigration law. In addition to reinstating the restrictive measures of his previous administration, Trump vows to go further, expanding the authority of Immigration and Customs Enforcement (ICE), fast-tracking deportations, and limiting existing legal immigration pathways.
From humanitarian and family-based petitions to investment and work visas, immigration cases are likely to face heightened scrutiny and shifts in enforcement priorities that could dramatically impact individuals, families, and businesses navigating the U.S. immigration system.
Asylum
For those who may qualify for an asylum claim, filing now may lock in eligibility under current laws and policies and create legal protections that can shield them from immediate deportation. Once an asylum application is filed, applicants are generally entitled to a hearing and protection from deportation while their case is pending. This applies to folks who are not yet in removal proceedings, and who have not been issued a notice to appear in immigration court but have filed an application for relief with the United States Citizenship and Immigration Service (USCIS). Under stricter enforcement, ICE may use expedited removal procedures to deport individuals without providing them an opportunity to meaningfully appear in court. Applying now reduces the likelihood of being subjected to these procedures.
Family-based immigration
We are already starting to get an idea of what to expect when it comes to the Trump administration’s policies for family-based immigration. Just two days after the 2024 election, a District Court Judge struck down the Parole in Place program – a Biden administration program that allowed undocumented spouses of U.S. citizens to obtain legal status and streamlined the path to U.S. citizenship. Now, undocumented spouses of U.S. citizens will have to go abroad to apply through consular processing. This has been a relatively common practice in the field, however, there is always the risk that even if an unauthorized overstay is forgiven, the individual will be barred from re-entry. With the new administration, this risk grows. Filing petitions for relatives as soon as possible may help protect applicants from these barriers, as a pending case with USCIS may decrease the chances of an unfavorable interaction with ICE.
Work Visas
One of the Trump campaign’s biggest promises is to preserve American jobs. We have seen this rhetoric before. In 2020, he issued orders suspending entry for certain visa categories, including H-1B (specialized workers), L-1 (intra-company transfers), and J-1 (students), under the pretext of protecting American jobs during the COVID-19 pandemic. Efforts were made to seriously limit the H-1B program, including proposals to prioritize higher wages and more restrictive interpretations of “specialty occupation” criteria. The O-1 (extraordinary ability) was exposed to stricter scrutiny and Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDS) for all of the above applications increased significantly.
This time, we fear he may reinstate and expand these policies, affecting eligibility criteria for EB2 (advanced degree professionals) and EB3 (skilled and unskilled workers). The EB3 program in particular is likely to face increased scrutiny in the labor certification process. The incoming administration may intensify audits or investigations into these certifications, delaying applications or denying them altogether. Prevailing wage thresholds for these positions could also increase, making it more expensive for employers to sponsor foreign workers and reducing the pool of employers willing to sponsor such visas.
A Legal Tug-of-War
Looking at previous Trump administration policies, we can already predict the narrowing of many routes to relief for those facing removal. Currently, if an individual facing deportation has alternative grounds for relief, such as family-based USCIS applications or timely filed work visa petitions, immigration judges have the discretion to terminate/dismiss removal proceedings until the alternative grounds for relief are fully adjudicated. This is often referred to as administrative closure and has been a longstanding law under Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017). Attorney General Sessions, under Trump’s previous administration, acted quickly to overrule these cases in In re Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018) which withdrew the authority of judges to utilize administrative closure in such circumstances, effectively forcing a full adjudication of removal before other routes to relief have been exhausted. Only three years later in Matter of Cruz-Valdez, 28 I. & N. Dec. 328 (A.G. 2021), Attorney General Garland, under President Biden’s current administration, overruled Sessions’ decision, bringing administrative closure back into the discretion of immigration judges when alternative routes to relief exist. This judicial tug-of-war between the Trump and Biden administration demonstrates how rapidly the legal landscape in immigration law can change, and we fully expect Trump’s next Attorney General to address this issue and others within the first few months of his administration.
Even in the most challenging and trying times, America remains a nation of opportunity built on the foundation of immigration and resilience. There is always hope, and it is essential to never lose sight of that or give up. We understand the stress and uncertainty an immigration journey can bring and remind you that there are many immigration resources available in San Diego for all income levels. There are also many free mental health resources available 24/7.
Suppose you think you may be impacted by changes in policy implemented by the incoming administration. In that case, we urge you to re-evaluate your case with your immigration attorney as soon as possible. A proactive strategy can help avoid some of the barriers posed by the policy changes.
Igor Harris is the lead attorney at the San Diego branch of Modern Law Group, a national immigration law firm. He also operates a solo practice under Harris Law Group.
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