Episode 78: What immigration might look like in a second Trump administration

It’s June 13, and this is your BAL Immigration Report.

• S. business leaders tell BAL it has become easier to meet foreign talent needs.
• A new report examines the human and economic costs of ending DACA.
• Lynden Melmed, the head of BAL’s Government Strategies team, joins us to discuss one organization’s vision for a second Trump administration.

“They are really going after the administrative state, and that means bringing several agencies together to have a more enforcement-oriented focus, increasing the role of the Fraud Detection and National Security component within USCIS, and then also just trying to reduce the number of applications that could be filed or adjudicated.”

—Lynden Melmed, BAL Partner

U.S. news

Businesses say foreign talent needs easier to meet in recent years

U.S. companies found it easier to meet foreign talent needs in the last four years than in the four years before that. That was one of the takeaways from BAL’s recently completed survey of U.S. business leaders about the upcoming presidential election and its impact on immigration programs. BAL received 111 responses from companies of all sizes, across more than 20 industries. Nearly 6 in 10 respondents — 59% — said their organization found it somewhat or much easier to meet foreign talent needs in the last four years. Another 23% said they hadn’t seen much change. Employers also expressed a commitment to foreign workers amid political uncertainty. We’ll have more on the potential impact of the election in this week’s Spotlight. The complete survey report will be coming soon on BAL.com.

Report looks at human, economic costs of ending DACA

The Coalition for the American Dream released a new report — “Forfeiting the Trillion-Dollar Dream” — examining the long-term economic and societal impact of the Deferred Action for Childhood Arrivals program, or DACA, ahead of its 12th anniversary this Saturday. The organization said the report shows that ending DACA would be detrimental to the economy, upend industries and devastate families. The report details the disruptions for families, the impact on the U.S. workforce and business community, projected investment losses and future economic implications, predicting up to $648 billion in economic losses and $10 billion in additional government costs over the next three decades. Advocates have called for congressional action as a long-term solution for Dreamers with DACA still under threat in federal court.

U.S. news roundup

• S. Customs and Border Protection issued updated summer travel reminders.
• The Department of Labor posted updated PERM and prevailing wage processing times.
• The State Department released the July Visa Bulletin, showing advancement in key employment-based categories and retrogression by almost a year for all countries under EB-3 except for India and China.

Spotlight

A conversation with BAL Partner Lynden Melmed: what immigration would look like in a second Trump administration.

BAL Immigration Report: The major party presidential candidates have not yet been formally nominated, but some groups in Washington are already laying policy plans for a second Biden or second Trump administration. One group in particular, the Heritage Foundation, has drawn significant attention for its Project 2025, a collection of policy proposals for a second Trump term that would radically reshape the federal government.

BAL Partner Lynden Melmed joined the podcast this week to discuss the Heritage Foundation’s roadmap for immigration. Melmed is the head of BAL’s Government Strategies team in Washington, D.C. Before joining BAL, he served as chief counsel for U.S. Citizenship and Immigration Services, the agency’s top legal position. He is one of the nation’s leading experts on U.S. immigration policy. We opened our interview by asking Melmed about the Heritage Foundation and why the group’s recommendations have garnered so much attention.

Melmed: Heritage is a prominent conservative think tank here in Washington, D.C., and it normally doesn’t necessarily get on the national radar but, understandably, its profile is increasing as we go into a scenario of a second Trump administration. If we could go back in time a bit, Heritage was started in the ’70s but really got its breakthrough when it did its “Mandate for Leadership” book going into the Reagan administration. That “Mandate for Leadership” was published in 1981 and really set the roadmap for the Reagan administration both on domestic and foreign policy. A large number of their recommendations were adopted and implemented, and a lot of folks who worked for Heritage at the time then assumed positions in the government as a result of that relationship with the executive branch.

When President Trump ran for his first term, many of the conservative organizations around town were wary of President Trump and didn’t throw their full support behind him, but Heritage was different. Heritage got behind him early and loudly. I saw a number the other day that about 66 Heritage recommendations were hired into the administration, so they had a heavy influence on who the political appointees were. And so they just — both because of where they positioned themselves in the first term and now coming up to a potential second term — have significant clout with what that administration would look like and what their agenda would look like.

BAL: Melmed detailed some of the Heritage Foundation’s proposals on immigration.

Melmed: They do cover really every aspect of immigration law, including some of the peripheral issues and a lot of enforcement priorities — but, focusing specifically on business and high-skilled immigration, I would call out a few core areas. First and foremost is a theme throughout their mandate that they leverage the administrative tools of the agencies to reduce, in their mind, unwanted immigration. And that’s different — most of the time, you have policy recommendations and you say this is what our policy should be or not be — but they are really going after the administrative state. And that means bringing several agencies together to have a more enforcement-oriented focus, increasing the role of the Fraud Detection and National Security component within USCIS, and then also just trying to reduce the number of applications that could be filed or adjudicated. So, again, leveraging some of these, I call them the “soft administrative skills,” as opposed to the policy fights. That’s notably different than where they were four or five years ago, and that reflects the experience that many of them had inside the government during the first term.

Beyond that, I would also highlight — it almost just needs one sentence for them — which is to roll back or rescind every single Biden policy. So you would see that, which of course the Biden administration did when they took office, to spend the first few months rescinding or striking every single policy that was put in place by the former administration. But terminating DACA and terminating the parole programs, those are probably the marquee targets for them. Finally, a fair bit of emphasis on foreign students, particularly from what they describe as “enemy states,” which is not really defined and presumably would be defined relatively broadly, but trying to reduce the number of foreign students from those countries will be a key target for them.

BAL: We asked Melmed how employers would be impacted if the Heritage Foundation’s recommendations were implemented.

Melmed: Well, there’ll be a few different ways that employers would face a very different environment than they face today. Start with just budget — a lot of companies, this is their budget cycle going into the summer. They would see a significant increase both in just direct filing fees — which Heritage does call for an increase in filing fees — but we would also expect to see a significant increase in the number of requests for evidence and number of refiling of applications. And so to start with — from a pure budget, not the human side, just a program budget — we would advise our clients to plan for a significant expense next year. Even if their utilization of those programs goes down, it could see significant budget increases.

The second aspect really relates to both foreign students and H-1s. That pipeline of hiring out of U.S. universities, which really withstood during the first term — there was no major blow or impact on companies’ ability to hire foreign students out of universities and get them into H-1 status, other than just the legislative cap on the number of slots available. It seems apparent to us that they are going to set their sights on trying to go after the foreign students and then simultaneously restrict eligibility for H-1 visa holders. So if the first term was defined by travel bans — and those might come back into play as well — we could also see more domestic challenges for the employees who are already here in student status or in H-1 status.

The final thing would just be the level and intensity of oversight of companies that use the programs from an enforcement perspective. The Fraud Detection and National Security program, it’s not a law enforcement component, but they have a broad view of what they can look at if they start looking at cases. And their perspective is that if you’re coming to the government and asking for a benefit, you have to clear that hurdle, whatever the hurdle is that they define, to get a case approved. So companies would really need to have their house in order in the second Trump administration because of that level of oversight to get their cases approved.

BAL: Melmed stressed that the Trump campaign and Heritage Foundation are different organizations. The Trump campaign is focused on getting Trump elected, while the Heritage Foundation is focused on policy recommendations after he takes office. Thus, they may differ somewhat in how they talk about immigration. Still, Melmed advised against “using rose-colored glasses” when thinking about how a second Trump administration would handle the issue. He said the Heritage Foundation’s roadmap does reflect what a Trump administration might look like from a policy perspective. We asked what employers could do to prepare for a potential change.

Melmed: Well, there’s actually a fair amount that companies can do over the next six months to prepare their workforce for the inevitable changes that are going to occur. Like I mentioned, that happens with every administration change, every change in political party, but it could be particularly severe if Trump was elected for a second term.

The most obvious ones are the recognition that it may be difficult for employees to reenter or come to the United States after the swearing in of President Trump for his second term. We do expect there would be travel bans. We expect there to be a certain element of chaos and confusion both at the consulates and at the ports of entry for many employees who use the end of the year as a time to go home and visit their families and do their extended vacations home, as it is a long way to go. Having them take those trips before for the election is just good advice and allows them to be back inside the United States at the time of swearing in and during those first few critical weeks of a new administration.

The second aspect of it is to just go ahead and file whatever extensions or amendments that you can before any new administration comes into place. You’re just taking advantage of the policies as they are today as opposed to what policies will be in the future, and that could give you at least a few years of breathing room to do that.

The third element, as I just mentioned a minute ago, is getting your own house in order, and it’s surprisingly easy to do a small audit or have a policy review or just look at your program with external eyes and identify potential vulnerabilities that you could tighten up before the election. If President Trump is reelected, it’s easy to see that the executive team is going to reach down to the immigration programs. And the first question is, how vulnerable are we? And you’re going to have to look at that both from a human perspective for your employees — you’re going to have to look at it from a workforce staffing and training and retention perspective and how durable their work status is — and then finally, as I mentioned, look at it through the lens of corporate risk. Are there any risks for the company if there was an investigation? So focusing on those three legs of the stool for a program, I think is something that companies should be doing over the next few months.

Global news

Italy clarifies work rights for some residence permit holders

Italy clarified legal uncertainties about work rights for certain individuals with residence permits. The Italian government recently published information further explaining the right to work under its residence-permit-to-citizenship application process. Foreign nationals holding a residence permit while applying for citizenship and currently waiting for an interview appointment at police headquarters are allowed to continue to work as long as they submit requisite employment notifications to authorities.

Sweden pilots digital passport program

Swedish authorities have introduced a digital passport pilot program. Under the pilot, students and workers from 22 countries and territories will be able to use the Freja identification app to show their passports. The e-service is designed to allow eligible individuals to save time and money when traveling to Sweden. The government estimates that around 19,000 workers and 5,000 students will benefit from the new service per year.

Global news roundup

• Indonesia recently enacted a bridging visa to simplify the visa transition process for foreign nationals.
• New Zealand made changes to the Accredited Employer Work Visa related to length of stay and visa extensions.
• Thailand made updates to its rules governing tourist visa exemptions.

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