10-15-2025
By Christine L. Cedar, Esq.
Nearly ten months into the second Trump administration, federal immigration policy remains an area of intense focus and change in America. With foreign nationals representing nearly a fifth of the country’s civilian workforce, employers across industries must learn to navigate the changing tides.
This article provides a general overview of immigration compliance for U.S. employers and highlights ways in which employers should adapt in response to recent and anticipated changes in U.S. immigration policy.
Work Authorization
In the United States, employers may only employ persons who are legally authorized to work in the country. Authorized workers include U.S. citizens, permanent (immigrant) workers, and those on temporary (non-immigrant) work visas. Common types of work visas include the H-1B visa, used primarily for specialized occupations; the L-1 visa, used for intracompany transferees; the O-1 visa, used for individuals with extraordinary abilities in the sciences, arts, film, education, business, or athletics; and the TN visa, used by Mexican and Canadian professionals. Generally, the U.S. Department of State (DOS) is responsible for allocating visas, while the Department of Homeland Security (DHS), through USCIS, manages the application and determination process.
The White House has introduced several new immigration-related directives which are expected to have broad impact on foreign nationals’ ability to obtain visas and thus work in the United States. For example, Executive Order 14161 (issued Jan. 20, 2025), requires federal agencies to improve screening and vetting processes for all foreign nationals seeking to enter the United States. The Order also mandates a comprehensive review of existing visa programs. In addition, Trump’s America First Trade Policy calls for a review of existing trade agreements, including the United States-Mexico-Canada Agreement, under which TN visas are granted. These directives, combined with precedent set by the first Trump administration, suggest that more restrictive standards and delay in the adjudication of visa applications lie ahead.
In light of these new directives, employers who rely on H-1B visa holders or other temporary workers should:
- Prepare for visa delays with prospective foreign hires and for employees due to be transferred to the United States on international assignment.
- Consider building alternative pipelines, including talent development and/or talent sourcing programs, for impacted roles.
- Stay informed on policy changes that may affect visa eligibility or work authorization.
Immigration Audits
Federal law requires employers to verify the identity and employment eligibility of each person they hire. As part of this process, employers must complete a Form I-9 within three days of the worker’s start date. Employers must then retain these forms for all current workers for three years after the worker’s hire date or one year after the date employment ends, whichever is longer. Failure to comply with Form I-9 requirements could result in civil fines or criminal penalties.
The Immigration and Customs Enforcement (ICE) division of DHS is responsible for enforcing I-9 compliance, which it does by auditing employers. Typically, these audits come in one of two forms:
- An I-9 audit, in which ICE asks the employer, via written notice, to produce I-9 forms and related information for inspection within three business days.
- An ICE raid, in which ICE agents unexpectedly appear on the employer’s job site to look for people working without proper work authorization, or to collect other evidence.
DHS enforcement in this area is expected to increase under the current administration, including at worksites previously shielded from enforcement action.[1] While directives to this effect have been circulating federal agencies since January, it was more fully bolstered in July, when the latest tax and spending bill was signed into law. This legislation allocated roughly $170 billion for immigration enforcement and border order security efforts, including $75 billion in extra funding for ICE, making it the highest-funded law enforcement agency in the federal government.[2]
In light of this increased enforcement priority, employers should consider:
- Training HR and Legal teams on Form I-9 compliance and record retention compliance.
- Conducting internal audits of Form I-9 records to identify and correct errors.
- Assigning an employee or work group to lead any ICE raid response.
Worker Mobility
So far this year, the White House has announced two new proclamations intended to affect—and restrict—the entry of foreign workers into the United States. The first proclamation, signed by President Trump on June 4, 2025, and effective as of June 9, 2025, blocks entry into the United States for nationals from 19 countries, either fully or with partial restrictions:
- Fully Blocked from Entry: Immigrants (those seeking permanent residence) and nonimmigrants (those seeking temporary residence, such as tourists, students, or workers) from Afghanistan, Myanmar (Burma), Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen.
- Partial Restrictions on Entry: Certain nonimmigrants (including those seeking tourist or student visas) from Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela.
The second presidential proclamation, issued on September 19, 2025, and effective as of September 21, 2025, targets workers sponsored under the H-1B visa program, specifically. Styled as an entry ban, the proclamation renders inadmissible to the United States any H-1B worker for whom a $100,000 fee is not paid.[3] Although the proclamation does not appear to apply to existing H-1B visa holders, employers should monitor DHS guidance as it continues to be published.
Considering the potential for business disruption, heightened fees, and other individual risks, multinational employers may want to:
- Review internal travel policies and practices, including prohibited country lists, for any necessary updates.
- Consult counsel to assure expat populations are properly represented and supported.
- Leverage an Employee Assistance Program (EAP) to assist those impacted by a travel ban.
Controlling for Bias
As a final reminder, Title VII of the Civil Rights Act of 1964 (Title VII) protects most workers from employment discrimination based on several enumerated categories, including their national origin. Similarly, Section 1324b of the Immigration Nationality Act (INA) prohibits most employers from discriminating against workers authorized to work in the United States based on their citizenship status or national origin. Title VII’s anti-discrimination mandate is enforced by the Equal Employment Opportunity Commission (EEOC), while the INA’s is enforced by the Immigrant and Employee Rights Section of the Department of Justice (DOJ).
Under prior administrations, both the EEOC and DOJ traditionally focused on employment bias against foreign nationals. Under the current administration, this focus is expected to shift. In fact, the EEOC has already communicated the change in its enforcement strategy. On February 19, 2025, the EEOC issued a press release advising that it will prioritize protecting American workers from “anti-American” bias. In a show of commitment to this new policy, the EEOC in February announced settlement of a suit against a U.S. hospitality company for its alleged “anti-American” bias (i.e., offering employees of Japanese origin more favorable terms of employment than employees of American origin).
DOJ’s role in the prosecution and enforcement of national origin discrimination in employment is less clear, although history suggests that it too is likely to change course. DOJ under the first Trump administration, for example, attempted to conduct more investigations into anti-American bias than did prior administrations. DOJ’s current enforcement priorities emphasize its directive to “use all available resources to pursue affirmative litigation combatting unlawful discriminatory practices in the private sector,” as well.
In light of these recent changes in enforcement priorities, employers who rely on H-1B visa holders, other temporary workers, or who sponsor green card holders should:
- Review internal policies to ensure they prohibit discrimination on the basis of national origin and also citizenship status.
- Prepare for increased scrutiny of any internal policy that appears to show a bias for or against anynational origin group.
Recent changes to U.S. immigration policy have created a complex and dynamic environment for employers, requiring them to adapt to new regulations and requirements. These changes include a tightening of visa regulations, increased scrutiny and audit, and banned travel for both workers and their loved ones. Employers must navigate these challenges carefully to ensure they remain compliant with the evolving legal landscape.
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About the Author
Christine L. Cedar, Esq.
Consultant
Washington, DC
- Joined EPS in January 2025
- Senior Director, Employment Law & Litigation; GEICO
- Associate; Paul Hastings LLP
- HR Business Partner; Travelers
- B.S., Industrial & Labor Relations, Cornell University
- J.D., George Mason University School of Law
- Licensed Attorney, District of Columbia, 2017