Immigration Update for Employers
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APPLIES TO All Employers |
EFFECTIVE January 20, 2025 |
QUESTIONS? Contact HR On-Call |
Quick Look
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Discussion:
Several Executive Orders have taken aim at the existing immigration process. All of the Executive Orders face legal challenges, and some courts have already responded. Below is a summary of the Executive Orders impacting employers.
Protecting the Meaning and Value of American Citizenship
The purpose of the Executive Order is to end automatic citizenship to those born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (e.g., visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth. It would apply to infants who are born on or after February 19, 2025.
Legal challenges immediately questioned the constitutionality of the Executive Order. The Fourteenth Amendment to the U.S. Constitution states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Supreme Court precedent dates back to 1898 in United States v. Wong Kim Ark, where the Court affirmed that birthright citizenship extended to all children born in the United States regardless of their parents’ citizenship.
On January 23, 2025, the U.S. District Court for the Western District of Washington issued a 14-day preliminary injunction against the Executive Order. This was extended to a nationwide preliminary injunction on February 6, 2025 until the resolution of the lawsuit at issue or until a higher court overturns the injunction. On February 5, 2025, the U.S. District Court of Maryland also issued a nationwide preliminary injunction also citing the Fourteenth Amendment and Supreme Court precedent. This injunction means it will remain in effect until the lawsuit is resolved or the injunction is overturned by a higher court.
Other legal challenges to the Executive Order are ongoing. It is likely the matter will end up before the Supreme Court. Until then, the Executive Order is not in effect.
The Executive Order instructs the Secretary of State, Attorney General, Secretary of Homeland Security, and the Director of National Intelligence to increase vetting and screening of noncitizens entering or already in the United States “to the maximum degree possible.” Individuals from regions or nations with known security risks are to be especially scrutinized. There may also be travel bans from countries that are considered high risk.
The Executive Order mirrors policy language from the first Trump administration where consular visa applications, requests for immigration benefits, and H-1B, L-1, TN, and other nonimmigrant petitions required additional documentation. This led to challenges for both employers and employees to respond to the new standards. This also led to a slowdown in processing times for green card applications. In particular, employment-based applicants had to undergo an in-person USCIS interview. Employers and employees should plan for delays in recruiting and hiring foreign workers.
Realigning the United States Refugee Admissions Program
The Executive Order indefinitely suspended the U.S. Refugee Assistance Program (USRAP) on January 27, 2025. USRAP was a refugee resettlement program through which individuals and families applied for admission into the United States. All refugee arrivals are suspended under the Executive Order including those who were admitted and scheduled to arrive prior to the Executive Order. Industries that depend on refugee labor, like food processing, logistics, and agriculture are most likely to be affected.
Protecting the American People Against Invasion
The Department of Homeland Security (DHS) is directed to create new enforcement policies to address illegal entry, unlawful presence, and expedited removal of individuals unlawfully present in the United States. Granting of humanitarian parole, designations of Temporary Protected Status, and employment authorization are to be limited. The Executive Order also denies access to federal funding of “sanctuary” jurisdictions that do not comply with federal enforcement operations. DHS can also authorize state and local law enforcement to investigate, apprehend, and detain aliens.
The Executive Order also states that federal agencies should not grant employment authorization for individuals who are unauthorized to be in the United States. Such individuals include but are not limited to: (1) those seeking asylum, (2) recipients of the Deferred Action for Childhood Arrivals program (“Dreamers”), and (3) individuals granted Temporary Protected Status. Employees with expired work authorizations may not get their documents renewed disrupting business operations.
One major impact will be to individuals designated Temporary Protected Status (TPS). DHS is authorized to limit the scope and duration of the TPS program including the issuance of Employment Authorization Documents (EADs) for TPS individuals. Normally, TPS individuals are authorized to live and work in the United States for the duration of their designation. Employers with TPS employees from Afghanistan, Burma (Myanmar), Cameroon, El Salvador, Ethiopia, Haiti, Honduras, Lebanon, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Ukraine, Venezuela, and Yemen will likely be affected.
Following the Executive Order, the Acting Director of DHS issued a directive on January 21, 2025 to rescind the Biden administration’s guidelines limiting Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) enforcement actions in sensitive locations like schools, churches, hospitals, and other previously protected areas. Where the Biden administration focused on civil enforcement, the DHS intends to pursue more streamlined deportations, expedited deportations, and increased Form I-9 audits and worksite raids.
The Executive Order allows the DHS to take all appropriate action to construct temporary and permanent physical barriers on the southern border, deploy military personnel to the southern border, and eliminating parole programs for Cubans, Haitians, Nicaraguans, and Venezuelans. Employers with foreign national workers from these areas should expect increased entry requirements.
Action Items
- Audit and correct Forms I-9.
- Review pending visa applications with legal counsel.
- Consult with legal counsel regarding appropriate actions in the event of an enforcement action.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2025 ManagEase