Updated November 2024.
View Earlier Posts: Biden Era Immigration | Trump Era Immigration | Obama Era Immigration
Immigrants At Greatest Risk
Supervised Release. Most likely to be immediately affected are people under Supervised Release. These noncitizens have existing removal orders against them, and ICE extends Supervised Release as a courtesy. This is a benevolent gesture extended by sympathetic administrations.
The second Trump administration will not be sympathetic, so if you’re under Supervised Release, you’re at great risk. ICE likely will not call or mail you a notice, but may show up at your door and ask you to come with them. People in this category are extremely vulnerable – they’re the easiest to immediately locate, and the easiest to remove quickly.
Illegal Entry Less Than 2 Years. If you’re a noncitizen who entered the US without being inspected at the border (EWI), and have been in the US 2 years or less, then you’re subject to Expedited Removal. In this category you’re not entitled to due process. You don’t appear before an immigration judge. An authorized ICE officer will order you removed.
Those At Slightly Less Risk
If you entered the US without inspection and have been here over 2 years, you’re also at great risk, but you’re not subject to Expedited Removal. As of now, you may appear before a judge, and plead for a form of relief. The immigration courts will have very busy dockets, though, and you won’t be afforded leniency. You may not be given multiple continuances – or any – and you’ll be placed in detention until an immigration judge (IJ) decides your case.
The ultimate objective for the new administration will be to deny noncitizens any due process options. It’s also very possible that the rules governing immigration courts are radically altered. Though there aren’t many, the relief options available now may not exist long into the 2nd Trump presidency. For any undocumented noncitizen – the ultimate goal of the administration will be to limit all relief options to just 1: Voluntary Departure; agreeing to leave the country.
Immigration Courts, BIA
“BIA” stands for the Board of Immigration Appeals. This is an administrative appeal board made up of bureaucrats – not judges – who make the rules for immigration courts, USCIS, and DHS generally. During the last Trump administration the BIA eliminated or severely restricted forms of relief: denying access to I-601A waivers, creating measures for more easily denying asylum cases, refusing to continue cases for I-130 adjudication, and similar measures.
The goal of the BIA will be to make the immigration courts into a denial assembly line. The president will order the hiring of many new judges and prosecutors; and thousands of hearings may be conducted by video from detention centers. Access to lawyers will still be available, but difficult. What the administration aims for is to have noncitizens leave the country on their own. They will make it the easiest option.
Pathways to Residence Eliminated
Since the provisional unlawful presence waiver – the I-601A – is a regulation and not a law; the government will try to completely eliminate it. This means that foreign nationals married to US citizens will simply be removed, and told to apply for an I-601 waiver once they’re in their home country. This is much more difficult than filing the waiver here – provisionally. (It’s much easier for the government to keep people out rather than to get them out)
Speaking of law, since the Republican party now controls both houses of Congress, it’s quite possible that the legislature may completely revamp the immigration laws, and simply eliminate many forms of relief for noncitizens. Even the right to appeal could be eliminated. The F4 preference category may be eliminated (brothers and sisters of US citizens). It’s too early to know precisely, but it could very easily happen.
For Those Currently Qualified
Even if you were inspected at the border and are married to a US citizen, the road will be rocky. Adjustment of Status packages will be scrutinized far more rigorously than they are currently. For example, in the last Trump administration, spaces and boxes left blank on USCIS forms were sometimes cause for denial. The government will target any criminal charges and convictions – no matter how slight – as possible causes for denial. A moving violation may now be cause for concern.
Consular processing will probably be arduous as well. Once an I-130 is approved, the State Department (National Visa Center) procedures will be more involved and likely encompass more restrictions. Interviews at overseas embassies can employ more strict and blatantly unfair examination tactics. Consulate officers will refuse foreign nationals visas for random and trivial reasons. And – as now – there is no recourse at US embassies abroad. No right to “appeal.” So whether someone gets a visa or not becomes a roll of the dice, even though they may be perfectly admissible.
(And of course, the entire I-130 process may be revamped too. But since an I-130 doesn’t convey any status, the government likely leaves it alone, at least initially.)
VAWA applicants, T Visas, S Visas – all of them will be more difficult to acquire than they are now. Some of them may disappear altogether.
DACA
DACA was a bad idea to begin with; a knee-jerk measure made by a unsophisticated president ignorant of how to work with Congress. People relying on it may now face dreadful consequences.
Deferred Action for Childhood Arrivals isn’t really a status. It’s essentially the DHS officially recognizing that those in this category won’t be placed in removal proceedings. (It was a cynical move by Obama to gain support for his 2nd election.) Lawsuits have abounded over this. Even today it’s not possible to submit a fresh application for it, though renewals are still possible.
DACA could disappear. Even though it’s recipients are now middle aged, the government position will be “you entered illegally, you’re removable and we’re going to remove you.” Other possibilities exist of course, but my outlook for DACA is that the worst imaginable outcome will probably happen.
Work Visas
An already difficult benefit to achieve, work visas will get harder, and in some cases impossible to get. I’ll summarize (and simplify) as best I can.
When someone seeks a green card through a work visa, the government determines everything making up the actual job: wages, job description, the geographic economic viability, and what Americans are available for it, among other things. If you get through that process – if the government certifies the job – then you can apply for the visa. Applying for the visa means the government now determines if the foreign national is qualified to hold the position. For temporary positions the process is somewhat less complicated, but still rigorous.
As it did from 2016-20, a new Trump administration will order that all the work visa applications be highly scrutinized. Department of Labor officials will nitpick job descriptions, likely asking for copious evidence to simply determine what the job is. USCIS will review I-140’s to find any shred of a reason why foreign nationals aren’t qualified for jobs. USCIS will go into college and university records to make sure the necessary job skills were acquired. If they determine that the skills taught were insufficient for any reason, they deny the visa.
For work visa applicant, the process will be an even more convoluted and restrictive process.
Appeals (sometimes 5 years is a win)
If you’ve been handed a denial in immigration court, you can file an appeal with the BIA. Almost certainly the BIA will deny your appeal, but the appeal will take time. Some BIA appeals take over 1 year. After that, you can appeal the BIA denial with the Second Circuit Court of Appeals in New York City. That will also take time, about 18 months or so.
If you have a removal order against you and the time to file a BIA appeal has passed, or if your BIA decision is over 30 days old; then you can file a motion to reopen the case. If the BIA denies the motion (likely), you can appeal that at the Second Circuit.
Appeals have the advantage of buying you time. Depending on the judges you draw, and the facts of your case, you might even win.
Outlook – What Now?
As an attorney I can’t advise people to sneak across the forests into Canada, or hide until a new administration exists, or attempt any dishonest action. I’ve outlined what probably will happen with the new Trump administration, though your own circumstances may allow some form of relief.
If you do wish to file for a spouse of fiancé, or a parent abroad, if you wish to petition a foreign worker – whatever you’re intending to do – be prepared for some struggle. If need be, you should be prepared to go to federal District Court if there is need to file an action against USCIS for any arbitrary and capricious decision. It’s time consuming and expensive.
If you answer to a higher authority, and face great difficulty; it’s essential to have your goal clearly in mind and have faith that you’ll achieve it. At the very least, this will give you hope and strength. Sometimes miracles can happen too.
The outlook for foreign nationals isn’t good. It’s possible that many will suffer, and many good people will endure considerable heartache. I always find it best to deal in truth, absolute truth. I don’t give people false hope and I’ve never played games with people’s lives. But I have seen people face near-impossible odds and still – somehow – succeed. That’s not a small thing.