On Monday, January 20, the first day of the new presidential term, President Donald Trump issued a flurry of new executive orders¹ related to immigration action items. Many of these orders address humanitarian and southern border immigration initiatives, as well as vetting and security procedures. We will focus on those orders that directly or tangentially affect U.S. employers.

Key takeaways:

• While the majority of the new executive orders do not outright impact employment-based immigration, certain employees or their families may be affected by changes to humanitarian immigration programs.

• Of note, the executive orders provide for enhanced vetting and screening initiatives of nonimmigrant and immigrant visa applicants (including those sponsored by employers) in countries with “deficient” vetting and screening information, which sets the stage for stricter embassy policies (creating processing delays) and even upcoming travel bans for countries deemed to have deficient security/vetting information.

• The orders may require government review of certain trade and treaty agreements that could impact future policies for certain visa-supported treaty workers.  

• As in 2017, the new orders put the U.S. Refugee Admissions Program on hold.

• The orders also seek to end birthright citizenship in the United States, which could result in nonimmigrants being required to apply for dependent visas for children born in the United States.

• The orders end a recent humanitarian-based “parole” program for certain nationalities that provided individuals with work authorization, and make other changes to the processing of asylum applications.

• The orders also set enhanced enforcement priorities for prosecution of undocumented individuals present in the United States, including denying “sanctuary cities” (jurisdictions that do not assist federal law enforcement in identifying undocumented individuals) access to federal funding to the maximum extent allowable by law.

Immigration Executive Orders

The new immigration-related executive orders include the following:

• Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats: Order to direct federal agencies to identify countries that do not provide sufficient information on their nationals and to bar those nationals from U.S. entry.

One of the more relevant immigration orders for employers, “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” provides for enhanced vetting and screening across federal agencies, particularly regarding the issuance of visas and the admissibility of visa applicants. It hints at a possible future ban on admission of nationals of certain countries found to have deficient vetting and screening information.

The order instructs the U.S. Department of State and U.S. Department of Homeland Security to “vet and screen to the maximum degree possible all aliens who intend to be admitted, enter, or are already inside the United States, particularly those aliens coming from regions or nations with identified security risks.” The order goes on to require the secretary of state, the attorney general, the secretary of homeland security, and the director of national intelligence to provide a report “identifying countries throughout the world for which vetting and screening information is so deficient as to warrant a partial or full suspension on the admission of nationals from those countries pursuant to section 212(f) of the INA (8 U.S.C. 1182(f)).”

The order also requires evaluation of “all visa programs to ensure that they are not used by foreign nation-states or other hostile actors to harm the security, economic, political, cultural, or other national interests of the United States.”

Given this increasingly strict language regarding secure vetting, we anticipate that U.S. embassies, which are the gatekeepers for visa processing outside the United States, particularly those located in countries with historically heightened security risks, may soon put into practice more stringent background checks and internal vetting procedures. This could slow down visa processing times at the U.S. embassies or lead to increased instances of visa applicants’ cases being put into “administrative processing,” (which is a State Department mechanism for more in-depth review of applications and occurs when more information is needed to verify applicants’ backgrounds). Administrative processing can lead to delays of a few months or more.  

• America First Trade Policy: Order to direct U.S. trade policies that promote investment and productivity, including reviewing all existing trade agreements and the impact of the U.S.-Mexico-Canada (“USMCA”) agreement on American workers.

The executive order, “America First Trade Policy” instructs agencies to re-evaluate current trade policy and could result in changes to eligibility and requirements for TN visas, which are commonly used by Canadian and Mexican workers to enter the United States in qualified professional occupations, pursuant to the USMCA. The order requires the United States trade representative, in consultation with the heads of other relevant executive departments and agencies, to “assess the impact of the USMCA on American workers, farmers, ranchers, service providers, and other businesses and make recommendations regarding the United States’ participation in the agreement.”

Potentially, the reassessment of other trade agreements could eventually affect other treaty-based visa categories, such as the E-1 visa for treaty traders, the E-2 visa for treaty investors, and the H-1B1 visa (Singapore and Chile specialty occupation workers),² in view of potential adverse impact on American workers. The E-3 visa was created by an Act of Congress³ following the Australia-U.S. Free Trade Agreement, although the visa provisions are not implemented by the agreement, so we anticipate that the E-3 classification will not be affected.

Note that the H-1B specialty occupation program (for all other citizens) is not treaty-based, and therefore would not be reviewed as part of this new initiative.

• Realigning the U.S. Refugee Admissions Program: Order to halt refugee admissions into the United States until refugee policy “better aligns” with U.S. interest.

The executive order, “Realigning the U.S. Refugee Admissions Program” suspends the formal U.S. refugee program immediately for the indefinite future, with certain case-by-case discretionary exceptions in the national interest available. The program was similarly suspended in 2017 when the first Trump administration took office. The refugee program has long been a source of lawful entry of labor into the United States.

Historically, refugees sponsored through U.S. Refugee Admissions Program are vetted by multiple U.S. security agencies and if approved, are granted permission to enter, live, and work in the United States legally.

The order does require the U.S. Department of Homeland Security to submit a report within 90 days regarding whether resuming the entry of refugees would be in the interests of the United States, with further reports following every 90 days thereafter until it is determined that the resumption of the U.S. Refugee Admissions Program is in the interests of the United States.

• Protecting the Meaning and Value of American Citizenship: Order to end birthright citizenship.

One of the most publicized and controversial executive orders, “Protecting the Meaning and Value of American Citizenship,” ends birthright citizenship for infants born in the United States after February 19, 2025, who do not have at least one parent in possession of Lawful Permanent Resident (LPR) status and/or U.S. citizenship at the time of birth.

The constitutionality of this order has already been challenged by civil rights organizations as violating the Fourteenth Amendment of the U.S. Constitution, which states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

If the order is allowed to take effect on February 19, 2025 (and is not enjoined as part of the ongoing lawsuits), parents present in the United States on valid nonimmigrant visas may be required to secure dependent visas for newborn children. However, there is currently no process or framework in effect for obtaining such a visa for a dependent born in the United States.  

• Securing Our Borders: Order to end the CBP One program and parole program for Cubans, Haitians, Nicaraguans, and Venezuelans.

The executive order, “Securing Our Borders” implements several new enhanced “border security” protections. As one example, it orders the U.S. Department of Homeland Security to “cease using the ‘CBP One’ application as a method of paroling or facilitating entry of otherwise inadmissible aliens into the U.S.” The app had allowed asylum-seekers at a port of entry (i.e., a border crossing) to preschedule appointments for processing while maintaining guaranteed asylum eligibility.

The order also eliminates a “parole” program for Cubans, Haitians, Nicaraguans, and Venezuelans that was directed at providing grants of parole for long-term U.S. visits. With the goal of facilitating lawful entry for individuals who would not otherwise have the appropriate entry documents but who had a “confirmed U.S. supporter”⁴ and where a significant public benefit or urgent humanitarian reasons warranted the government’s favorable exercise of discretion, the parole program served as a source of lawful U.S. labor/workers. Once approved, these individuals were allowed to stay in the country for up to two years, obtain a work permit, and be shielded from deportations. There is no guidance on how individuals admitted pursuant to the parole program and currently present in the United States (who may hold work permits) will be affected or if, potentially, they will be required to depart. 

The executive order also addresses pursuing criminal charges against undocumented migrants; deploying “sufficient personnel” to the borders; and establishing a wall and “other barriers” at U.S. borders.

• Protecting the American People Against Invasion: Order to achieve total enforcement of all immigration laws against inadmissible and removable foreign nationals present in the United States.  

This order directs the federal government to take all available action to prioritize prosecution of criminal offenses related to unauthorized entry or continued unauthorized presence of foreign nationals in the United States, as well as set enhanced enforcement priorities for undocumented individuals. This includes construction and expansion of more detention facilities; implementing a requirement for undocumented individuals to register their presence; and creation of a federal Homeland Security Task Force in each state to coordinate enforcement priorities.

The order also calls for the U.S. Department of Homeland to deny “sanctuary jurisdictions” (i.e., cities that interfere with federal law enforcement operations to identify undocumented individuals) access to federal funds to the maximum extent allowable under law, in addition to further evaluation of criminal or civil penalties for such jurisdictions.

Further, the order requires that sanctions be imposed against foreign countries that do not accept or facilitate the return of their nationals from the United States, to include denial of U.S. visas to nationals of those countries.

Conclusion

While these orders do not directly change employees’ nonimmigrant or immigrant visa processing in the short-term, it is important for employers to be aware of changing policies and the impact on visa holder employees. We will continue to monitor any changes in the immigration policy area. Should you have any questions, please contact counsel.