The 2024 U.S. presidential election is ramping up, and both parties have made immigration a hot-button issue with vastly differing policy goals and approaches.
This immigration LEGALcurrents is intended to help organizations better plan for hiring and global mobility for 2025 and beyond. To better support your organization’s goals and your foreign national employees’ mobility in an increasingly complex world, some key areas for immediate consideration and action are:
Encourage Employees to Seek Legal Counsel about Obtaining Visa Stamps at U.S. Consulates Abroad before January 2025
Part of the Republican Party platform for 2025 includes reinstating the “Travel Ban” for individuals from certain Muslim-majority countries that was implemented in 2017. The 2017 Travel Ban caused significant delays and difficulties for employers and their employees who were stranded outside the United States, or unable to leave the country for business or personal reasons.
After several iterations, the 2017 Travel Ban allowed individuals with a valid visa stamp to enter to the United States. Therefore, we strongly encourage foreign national employees, particularly citizens of countries included in the 2017 Travel Ban, to seek legal counsel to determine the best strategy for mitigating travel issues before January 2025, when the next president will be inaugurated.
Prioritize National Interest Waiver and Extraordinary Ability I-140 Petitions for Filing and Possible Approval before January 2025
The National Interest Waiver (NIW) I-140 petition provides an employment-based pathway to permanent residence, based on the national importance of the individual’s work. The Extraordinary Ability (EA) I-140 petition provides a similar pathway for those who can show they are at the top of their field. Both the NIW and EA permit self-sponsorship, meaning a job offer is not strictly required.
In recent years, the Biden Administration has enacted policies generally favoring approval of NIW and EA petitions for those working in STEM fields. The Biden Administration instituted these policies by executive order, and a new administration could rescind them with the stroke of a pen.
In the event of a second Trump Administration, we expect these STEM-friendly policies will deteriorate or go away entirely. Therefore, we strongly recommend filing and expediting these types of I-140 petitions prior to inauguration day in January 2025. The government provides a paid expedite option for an additional $2,805, which ensures a decision within 45 business days for NIW petitions and 15 business days for EA petitions.
Take Advantage of Annual Department of Labor Wage Data before June 30, 2025
The Department of Labor issues annual wage data every year on July 1st. This data governs the minimum wage that must be offered for several visa categories. The current wage data is valid until June 30, 2025. The prior Trump administration proposed to dramatically increase these wages. It is reasonable to think that Trump may continue this proposal if elected.
Accordingly, we recommend that businesses consider front-loading any hiring or immigration sponsorship activities that require this wage data (such as H-1B visas and employment-based permanent residence filings) to 2024 or the first half of 2025, so as not to risk any surprise wage increases in the second half of 2025.
Further Information
This is not an exhaustive list of immigration law policies and procedures likely to be affected by the outcome of the presidential election. For example, it might be beneficial to submit applications for permanent residence (Form I-485) and citizenship (Form N-400) before an administration change, to avoid the risk of more stringent eligibility and filing requirements as of 2025 including additional disclosure requirements related to personal income and assets. However, at this time, it is not possible to assess such risks. The Immigration Practice Group continues to monitor immigration law and policy developments closely. Please contact any member of our Immigration Practice Group if you have any questions about these planning issues, or any other provisions.