What businesses can expect under Trump

With Inauguration Day for President-elect Trump fast approaching, it is an understatement to say that U.S. immigration, especially in the context of employment of foreign workers, will change in ways that even we attorneys cannot fully fathom.

Related: Read more about the presidential transition and expected impacts on HR.

Any national election shines a bright light on undocumented immigration and border security; much less publicly discussed is the immigration policy plan put forth by senior members of the prior Trump administration that will dramatically impact business, human resources and employment-based immigration.

Consider Project 2025, the Heritage Foundation’s guidelines for the next administration. Although the Trump campaign disavowed all ties to the document ahead of Election Day, several Trump campaign officials and Steve Bannon have made public comments since then confirming that the immigration plans set out in Project 2025 are in fact their plans for immigrants and people of immigrant origin in the United States.

The document titled Mandate for Leadership: The Conservative Promise was written by Ken Cuccinelli, deputy secretary of Homeland Security from 2019 to 2021 under Trump.

Here are the key highlights and potential impacts of the policy document that are likely to impact foreign national employees and HR leaders.

1. Mass arrest, detention and removal of those unlawfully in the U.S.

In an exclusive interview with NBC News on Nov. 7, 2024, President-elect Trump reiterated his campaign promise to undertake the largest deportation effort in American history, regardless of the cost. Per his stated plan, the administration will enact measures to allow mass raids in neighborhoods, work sites, churches, hospitals, schools and any other place necessary to apprehend and place into removal proceedings an estimated 11 million individuals currently living in the U.S. without lawful status.

The border security chapter in Project 2025 was authored by Tom Homan, former acting Immigration and Customs Enforcement director who is the new administration’s incoming “border czar.” Homan told a conservative conference that when Trump returns to office, “I will run the biggest deportation force this country has ever seen.”

2. Phase out H-2A (agricultural workers program).

Project 2025 also calls for capping the agricultural workers program at current levels and establishing “a schedule for the gradual and predictable phasedown over the subsequent 10 to 20 years.” This would create a staggering loss of workers from a critical industry.

Immigrant farmworkers make up an estimated 73% of U.S. agricultural workers and form the backbone of the food and agriculture sector, which contributed $1.053 trillion—or 5.4%—to the country’s GDP in 2017, according to the USDA Economic Research Service.

3. Phase out deferred action for childhood arrivals (DACA).

Instituted by President Obama, DACA allows people who immigrated to the U.S. as children, who have completed at least high school (or GED), and who have no serious misdemeanors on their records to qualify for work permits.

The program’s removal would immediately remove about 700,000 people from the workforce and about $4 billion in federal tax income from the economy. In a 2017 study of DACA recipients, researchers found that while significant numbers are employed in professional occupations, the most common employment industries are hospitality, retail, trade, construction, education, health and social services, and professional services.

4. Rescind temporary protected status and certain application-based work permits.

In addition to DACA, Project 2025 also calls for rescinding work authorization for certain groups of immigrants already in the U.S. This includes those authorized to work based on pending applications, such as Victims of Crimes (U-Visa), Victims of Trafficking (T-Visas) and those on Temporary Protected Status (TPS).

TPS is granted to immigrants already in the U.S. who are nationals of a country experiencing ongoing armed conflict or an environmental disaster that would prevent them from returning safely. Project 2025 would repeal all active TPS designations, affecting over 700,000 individuals, many of whom have been in the U.S. for decades and work in industries that face constant labor shortages.

This also would rescind H-4, E-2 and L-2 work permits.

5. Suspension of immigration applications.

Another piece of Project 2025 calls for automatically suspending the receipt of applications in immigration categories with large backlogs. This measure could lead to a freeze on new applications, including those from specialized workers in high-skill industries from countries like India and China. Such a freeze would increase existing backlogs and make it more difficult for family reunifications to happen and skilled workers to enter.

Suspending immigration applications means employees on H-1B visas would have to leave the country at the end of their six-year term because I-140 petitions would not be available for them to continue their employment.

6. Increased application fees and limited payment waivers.

In 2023, the United States Citizenship and Immigration Service increased application fees significantly—some nearly 200%. Project 2025 calls for even larger fee increases in application fees for various processes and proposes limiting fee waivers for those who cannot pay.

Such increases would make it harder for low-income people to access immigration processes, creating additional barriers and perpetuating socioeconomic inequality. Limitations on fee waivers could prevent vulnerable immigrants from regularizing their legal status.

7. Ending birthright citizenship and revoking the citizenship of naturalized citizens.

In a sea of controversial proposals targeting immigrants, the most astounding ones would seek to amend (or dispense entirely with) Constitutional protections for immigrants.

While campaigning, Trump touted his plan to end birthright citizenship, which would require a Constitutional Amendment but given today’s judicial climate is not outside the realm of possibility. More than 20 million Americans are naturalized citizens, and although denaturalizing a citizen has been rare historically, Trump advisor Stephen Miller, on Oct. 11, 2023, affirmed the plan stating, “We started a new denaturalization project under Trump. In 2025, expect it to be turbocharged.”

8. Large-scale immigration raids, including at worksites.

This is not new. In August 2019, the Trump administration carried out massive workplace raids on chicken processing plants across Central Mississippi, arresting 680 Indigenous, Latino and immigrant poultry workers. These were among the largest such raids in U.S. history.

In 2021, the Biden administration sought to address the harms stemming from these raids by reaffirming its agreement with the U.S. Department of Labor in a memo that ensured immigration actions would not undermine the enforcement of workplace rights. Project 2025, however, calls for reinstituting mass-scale enforcement raids with zero restrictions.

9. Increased worksite enforcement and I-9 fines.

This is also not a new policy and was borne out in practice during the prior administration. Employers of all sizes and across industries saw worksite raids and increased worksite inspections and I-9 fines. The below chart shows the remarkable increase:

One trend we witnessed and fully expect to see return is the record fines against employers for I-9/E-Verify compliance violations. Examples include a vegetation management company based in Pennsylvania that in 2017 was held liable for $95 million—the largest I-9 fine in history—and a Texas software company fined $34 million.

Recommendations for HR and personnel managers

First, be prepared. I know that sounds trivial, but this is crucial. If you are in an HR or personnel management role, now is the time for you and your team to take the following steps.

1. Know who is at your door.

Immigration site visits are on the rise and can occur without notice. The most common ones involve paperwork audits; in others, specific employees are targeted. The federal agencies that normally conduct workplace raids/site inspections are:

• Homeland Security Investigations (HSI), which collects and inspects employers’ I-9 Employment Eligibility Verification forms and other paperwork for compliance.
• Immigration & Customs Enforcement (ICE), which enforces immigration law and can initiate deportation proceedings. ICE agents aren’t police, but they can carry guns or small clubs and may have gear that says “Police” on it.
• U.S. Citizenship & Immigration Services (USCIS), which audits employment-related immigration sponsorship.

2. Have a workplace raid plan.

• Appoint staff, with backups, to interact with ICE agents upon arrival. Give these names to the reception staff so they know who to call. Any staff member you appoint with this task should be trained to cooperate with ICE without putting the company or employees at risk.
• Those individuals should take ICE officers to a comfortable location where they won’t interfere with staff or customers.
• Make sure these appointees know not to answer any questions or provide any other information to ICE.
• This contact person should contact immigration counsel immediately, along with human resources and legal departments.
• Train your employees on steps they can take to protect themselves (and family members) in case of arrest during a raid.

3. Have an I-9 compliance plan.

• If ICE is there to conduct an I-9 audit, they must supply a subpoena called a Notice of Inspection. You, as the employer, have three business days to provide ICE with Form I-9s and related documentation. So, always know where your I-9 forms are kept.
• It’s a good idea to self-audit your I-9 forms periodically, reviewing your intake and completion process for any potential exposure. Designate a person proficient in I-9 completion to perform the self-audit.
• Pay attention to proper retention of terminated employee forms. Immediately raise any concerns or issues with immigration counsel.
• Maintain thorough payroll records of your employees.
• Make sure all employee documentation is complete, truthful and available.
• We strongly recommend conducting an independent I-9 audit (through legal counsel) now and keeping detailed records of any irregularities uncovered and steps taken to correct these errors.

4. Have a global mobility immigration plan.

• Work with immigration counsel to develop a plan for U.S. and global mobility for employees who may have to leave or face difficulty entering the country, as was the case during the prior Trump administration.
• Process slowdowns at U.S. consulates across the world severely impacted the ability of employees to re-enter if they left for a temporary vacation or family-based emergency. Your company should have standard operating procedures for how to treat such employees.
• It would be in your best interest to work with trusted counsel to develop a plan that addresses either remote employment of critical employees via a foreign subsidiary or “nearshoring” employees in countries like Canada or Mexico on a temporary basis.
• Working with counsel will help you plan for a multitude of scenarios while remaining mindful of costs, tax implications and labor laws in those countries.