President Trump’s Immigration Impact, Part 2: Analyzing the First 140 Days

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Meagan Dziura: Moving from students onto other employment-based immigration, things we’re seeing, like I said, things are still proceeding as normal, where we’re still seeing approvals, we’re not seeing a huge increase in requests for evidence yet. I’m not saying that won’t be coming, but last administration we saw a huge, huge percentage of requests for evidence, so crossing fingers that that doesn’t happen quickly. But we are seeing this increased vetting in non-immigrant visa applications with USCIS, and this is not typical. Typically, only green card applications and employment authorization documents require fingerprinting and photos to be taken of the applicants. What we are seeing now is beneficiaries are being asked to come in for biometrics if they are applying for, say, an I-140, so their company wants to sponsor them for an immigrant visa or eventually a green card, we’re seeing them being asked to come in if they are trying to extend their H-1B.
And again, I have not seen this before. I think, partially, this is just going to slow and stall H-1Bs and potentially other visas. It’s unclear about how these biometrics are going to be used, but they have been issuing RFEs asking for individuals to attend these biometrics, and then provide evidence that they attended them in order for their visa applications to be approved.

Jim Plunkett: Yeah. I mean, I think this is all part, Meagan, of we anticipated this increased scrutiny, right?

Meagan Dziura: Mm-hmm.

Jim Plunkett: And we knew that this administration sees immigration and immigration enforcement as a policy win for them, and even if they’re not able to get legislation through or they’re still in the infancy of their rulemaking agenda, they’re going to use these sub-regulatory administrative tools that they can to keep track of people frankly, and make it harder for foreign nationals ultimately to come here. Another example of that is the Alien Registration initiative that they’re pursuing that requires foreign nationals who are 14 or older, who are staying in the U.S., to be registered and fingerprinted. And I don’t deal with as many of the forms that you do, Meagan. I understand a lot of folks are here on visas. A lot of that is already taken care of through those processes like the registration requirements, but it’s just like it’s another piece of this heightened scrutiny puzzle that I expect will be falling more on your lap and your clients’ laps in the weeks and months ahead when it becomes more of an employment-based immigration issue.

Meagan Dziura: Yeah, and just two other things we’ve been seeing that it’s not a policy change, but we just are seeing this just creep of more scrutiny. We’re seeing requests for evidence asking for wet signature forms. During COVID, essentially, we were able to start filing things with scanned signatures, and they are now seemingly rolling it back and asking for wet signatures again, which it’s not really a block, but it does just make things a little bit harder. Finally, just to note on some other types of legal immigration, we’ve seen clients that have green card interviews or naturalization interviews, having those interviews canceled, so they’re not really giving any type of reason for canceling it. They just say that interview essentially canceled. It needs to be rescheduled. So, it’s really unclear of what these cancellations mean.
I predict it’s part of the enhanced screening, unclear of what they’re going to do enhanced screening for in the case of naturalization, but that’s probably just another tactic to implement this advanced scrutiny on people, on foreign nationals in the U.S. Now, we can move on to TPS and DACA. Moving away from the employment-based immigration and more towards the humanitarian immigration, but it does still impact our clients because people who have DACA and TPS; they can apply for work authorization.
So, we still will get questions relating to the rollbacks of TPS. First with DACA, we had a really recent development where a recent decision by the Fifth Circuit Court of Appeals restricting key benefits of the DACA Program, specifically in Texas, is now set to take effect. So DACA recipients residing in Texas will no longer be able to apply for employment authorization documents, and this has been a multi-year legal battle. And essentially, the Fifth Circuit found that DACA recipients, the ability to get employment authorization documents was unlawful under federal law, but the scope was limited to just in Texas. So DACA beneficiaries in other states for now remain eligible to apply for EADs as usual, and likely people who live in Texas, if they move and apply for EADs in a different location, if they’re living in a different location, probably they will still be able to, it’s really unclear of how this will play out. There’s more legal battles over DACA, so unclear if this is going to spread, but for right now, it’s just Texas that is going to see that impact.

Jim Plunkett: Yeah, incredible. Meagan, I already alluded to DACA coming out of the Obama administration, and we’ve done Obama administration, Trump administration, Biden administration, and now Trump administration, and we’re still talking about legal fallout and legal challenges from DACA. It’s pretty incredible.

Meagan Dziura: Yeah. And we’re also seeing legal challenges with TPS. So TPS is a temporary protected status, and this is usually designated for countries where there’s some sort of conflict or natural disaster, and TPS was always meant to be temporary. It’s in the name, but a lot of countries that were designated as TPS countries have just had a continual process, and we’re seeing that this administration is really trying to roll back any of the TPS protections. DHS already rescinded the Biden extension of Haiti TPS. It was an 18-month extension, now it’s only 12 months. The TPS for Afghanistan is now going to be terminated as well. It’s going to essentially end July 14th, 2025. There was an ongoing legal battle with the TPS for Venezuela, and essentially now DHS can proceed with its revocation of Venezuela’s TPS. Do you see this pattern continuing? The administration is going to keep going after the remaining TPS countries. And do you think that Congress would do anything? I know that the administration, that’s what they’ve said is Congress can step in and do something about TPS. Do you see that ever actually happening?

Jim Plunkett: Yeah, those are great questions, Meagan. I mean, I don’t have any particular special insight as to what they’re planning with approaching other countries’ TPS designations, but it’s pretty clear from the way the administration has been acting, not just this time but in the first administration, is that they think they have pretty clear authority over the designation process. And if you look at the statute, the TPS Statute, it does say that the TPS designation decision by the secretary is not reviewable by courts. But there’s been challenges, and this was particularly in Venezuela as the folks who were suing over the determination of Venezuela designation, they said, “Well, yes, maybe it’s not reviewable, but the steps leading up to the decision if they were discriminatory based on animus or arbitrary, those can be reviewable.” And so, they at least had some success on those arguments initially when they got that injunction.
But the Supreme Court lifted it by an eight-to-one order, which is a polarizing immigration issue to get an eight-to-one Supreme Court ruling. Now, listen, it wasn’t a whole opinion, and this was on an emergency motion type of thing, so it wasn’t on a merits sort of decision. But I think that the administration is still sticking by their guns that says, “Hey, the way we read the statute, we’ve got pretty clear authority to do what we want with TPS,” and that’s the authority that Congress wrote into the statute. So, I wouldn’t feel comfortable about saying like, “Oh, they’re not going to touch TPS for any of these other longstanding things.” I think because they think they’ve got this authority, they’ve had some limited, some wins on those legal arguments, some losses on those legal arguments, but they’re going to keep pushing that.
Can Congress do anything? I know there’s a bill out there that would specifically address the Venezuela issue, but with the Republicans in charge of the Senate and the House and President Trump in the White House, I don’t think they’re going to be particularly interested in removing any sort of authority or power that the executive branch might have with regard to the TPS thing. That seems almost like a third rail for Republicans these days. So, I do think that means that we are in this sort of situation where, like I said at the outset, we might finish this podcast and find a new announcement. There’s a 60-day notice requirement, I think when they terminate, so I don’t know if we’re in a window yet or whatever, but you just don’t know when we might get a notice from DHS saying that they’re going to be unwinding or not renewing a designation for a particular TPS country.

Meagan Dziura: Yeah, I think that’s exactly right. I want to move a little bit, talk about enforcement just really quickly and we can talk about some legislative actions, the regulatory agenda, looking forward. We’ve been seeing increased vetting, again, the theme of increased vetting by CBP, Customs Border Protection, when people are entering the U.S. So CBP has always had the ability, they can search people when they’re entering the U.S. coming through immigration. They have always had the ability to put people in secondary inspection, which is where they may want to see more evidence of your status in the U.S. or ask you more questions. I think we’re just seeing more people get more questions from CBP and reports, of course, of CBP asking for people’s passwords or to see their social media.
And I think we’re hearing more instances of green card holders having CBP question them, which typically has not happened in the past. Usually, green card holders go through like U.S. citizens. We have heard one instance that a U.S. citizen was questioned as well. I haven’t heard any more about that, but I do think this is only going to increase, especially if they put in procedures for consulates to do increased social media vetting, and potentially, CBP could be taking that initiative as well.
We’ve also heard of increased site visits, so this is something else that DHS has always been able to do for Visa applications. You have to show that someone is going to be working in a specific location. And DHS has always had the ability to make a site visit, whether that’s calling an employer and saying, “Hey, I’m looking for so-and-so. I want to make sure that they’re working where they said they were working, doing what they said they were doing,” but we’re seeing increase in that, including we’ve had some visitors to people’s homes. So, after COVID, obviously, a lot of people are going or went remote, and so we have a huge population of employees working remotely. When you file an application, we’ll just say, when you file an H-1B application, you have to indicate if you will be working in your home. So, if someone is working home for say two days and then at the office for three days, we would likely put both of those locations.
And so we’ve had instances where DHS has sent someone to the employee’s actual home to make sure they were working there, and that they were working in the role that they indicated they were working. So, that was the first time I had ever heard someone coming to someone’s home. Typically, they’re just going to an employer, but I don’t doubt that that could continue to happen for specifically H-1Bs and Ls, we usually see site visits for Ls as well. What do you think that legislature can even do to impact immigration right now? What are we looking at in addition to what’s going on with the executive branch?

Jim Plunkett: Yeah, so I’m not a video game player, Meagan, and I never was, but I guess, there’s this term called an NPC, a non-playing character, and somebody told me recently that Congress is like an NPC. They’re just there in the background-

Meagan Dziura: Absolutely.

Jim Plunkett: … and you don’t really have control over them, and they don’t really do anything. In terms of real substantive policy changes, for the reason that I mentioned just a minute or two ago, you’ve got Republican control, the tri-factor control, they see immigration enforcement as a winning issue. They’re not going to try to strike a deal, I think, with Democrats on some grand comprehensive immigration bill.
What you probably will see is as part of this bigger, broader discussion about the legislation is literally called the Big Beautiful Bill Act. It’s not my characterization of it. It’s not the pundit’s character; it’s what the bill is called, the Big Beautiful Bill Act. But there are immigration funding provisions in that bill that’s passed the House and is being reviewed in the Senate, and that would provide, this bill is, this Big Beautiful Bill Act, it’s all about money, and funding, and the government’s budget, and taxes. And so, what that can do in the immigration space is funnel more money to hire new enforcement officials to invest in new technologies, to build the wall, those sort of things.
So, it’s funneling money at immigration, but in terms of substantive immigration policy changes, it’s not going to, that’s really, I think, the immigration outlook in Congress. In terms of the regulatory arena, we’re just ramping up to see what the administration has in store, and fortunately every administration, twice a year, one time in the spring, once in the fall, they issued what they call the regulatory agenda, which is the government-wide regulatory roadmap for the next six months, not just in immigration, but for all federal agencies.
So, we’re expecting that to come out sometime in June or July from this administration, and that’ll give us a sense of where they’re heading on employment-based regulations. Are they going to go after work authorization for spouses of H-1B visas? Are they planning to increase the prevailing wages for H-1B visa holders? Essentially, make the system so expensive as to have people almost voluntarily quit, all stakeholders of the system sort of back out. Maybe they say, “Well, we can’t get rid of the program, but we can make it so expensive that nobody will want to use it.” So those are the types of regulations that we’ll be looking for.
Also, keep in mind that several weeks ago, Secretary of State Rubio issued this notice that basically said lots of immigration issues really are foreign affairs issues, and there’s a foreign affairs exception to notice and comment rulemaking under the Administrative Procedure Act. I’m wary that I’m getting a little bit too wonky and in the legal weeds here, but what he’s essentially saying is that they might proceed with, normally when any agency issues a rule, they ask the public for input. They say, “Hey, here’s our proposal. Give us your feedback. We’ll take that feedback into account before we issue a final rule.” But what Rubio is essentially saying is that maybe in some circumstances, immigration regulations might be considered a foreign affairs exemption from public comment rulemaking where they don’t even have to issue a proposal. They can just go right to a final rule.
That would be pretty interesting. It would be definitely testing the legal waters. There’d be lots of litigation over that, but keep that in the back of your mind when we’re talking about regulations. And then, of course, there’s the, but rulemaking process is if they are going through notice and comment are lengthy, right? It takes probably about 12 to 18 months from the proposal to the final rule, but what they can do in a much quicker fashion is what I call sub regulatory activity. These are the memo saying, “Hey, we’ve got to get more RFEs,” those sort of things. So, they can issue memos, FAQs, directives to consulates. We mentioned that there is these other regulatory tools that don’t necessarily have to go through the formal rulemaking process that the administration can take advantage of. So, I think we’re going to see more of those, but I think we really need the political personnel in place.
Like I mentioned, the USCIS director, right? They’re going to want to get a person in there. I think they’ve got their permanent person at the ETA at Department of Labor, obviously they’ve got Secretary of State. So, I think that regulatory agenda will be a good guidepost for us to assess where the administration is and where they’re heading in terms of employment-based immigration policy changes.

Meagan Dziura: Yeah, I agree with you, and I think it’s interesting looking back on what we discussed and said they would focus on, and how we are already seeing that change, especially with going after the students. We’re already seeing that change, and it’s only been 140, maybe 141 days now, so it’ll be interesting to see where else this goes.

Jim Plunkett: They’ve got three and a half years. Three and a half years.

Meagan Dziura: Exactly. But thank you so much for coming and chatting with me on this. This is really interesting, and I think it’s going to be, I mean, we may just have to do one every year. It’s just going to be an ever-changing space in immigration to see the impacts.

Jim Plunkett: Yep. I’m with you. Thanks for having me, Meagan.

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