How the US election could affect US immigration

The USA has voted. The re-election of Donald Trump as President of the United States raises the question of how the election result will affect US immigration. Trump himself has discussed the issue very prominently and is threatening to tighten immigration to the USA, in some cases considerably. There is a lot of speculation in the media about this and we would also like to venture a cautious outlook based on our wealth of experience in the area of employment-based migration, including business trips.

Entering the country under ESTA

Citizens of certain countries, including EU member states, can enter the USA without a visa for a period of up to 90 days. However, they need a travel permit via the Electronic System for Travel Authorization (ESTA) to start their journey. However, even with ESTA, actual entry into the United States is not yet guaranteed. It is the US Customs and Border Protection agency on site that decides whether and for how long the traveler will be granted entry (max. 90 days per entry). As in previous years, it is to be expected that business trips to the USA will be scrutinized more critically with immediate effect, especially if they are frequent or longer-term (e.g. several weeks at a time). Checks will be carried out upon entry by means of more in-depth queries at the immigration counter or so-called “secondary inspections“. For this purpose, travelers are questioned – sometimes interrogated – in separate rooms about the reason for their entry. These interviews can be very unpleasant, but can often be avoided with good travel preparation (e.g. taking a letter from your employer with you) and a briefing call with US immigration experts.

Assignments, transfers, remote work and other longer-term stays in the USA

Work stays in the USA generally require a work permit. The application process for US work permits is already very paper-intensive and sometimes lengthy. The main fear here is that – as in Trump’s first term in office – the following effects will occur:

• Certain types of visas (e.g. L-1B visas for company specialists as part of a personnel exchange or H1B visas for skilled workers) could in principle be issued more restrictively in order to limit labor migration.

• Procedures could be delayed, sometimes for months, due to official inquiries or requests for documents (so-called Requests for Evidence) and the visa requirements could be applied more strictly.

• Application fees (such as the recent Premium Processing Fee for expedited processing) could be raised (further) to increase the cost of obtaining a US work permit.

• Due to a possible change in immigration policy and the associated uncertainties, there could be a considerable backlog in the processing of applications. This would make the already long processing times even longer.

• Visa applications could also increasingly be rejected within the scope of the authorities’ broad discretionary powers.

• Visas for relatives and work permits for relatives could also be examined more critically.

• It cannot be ruled out that foreign students will find it more difficult to access the labor market.

Against the backdrop of the already existing staff shortages and skills shortages in certain sectors and/or regions in the USA, these effects can have serious consequences for companies that urgently need to fill vacancies, for example.

Recommendations for US immigration practice

Every company that has or will have points of contact with the USA in the future should continue to monitor the legal requirements and practices of the US immigration authorities in the coming months. It remains to be seen whether employment-based migration will actually be the focus of Donald Trump, or whether areas such as family reunification or refugee policy will take center stage first. We recommend in any case:

• for ESTA travel: Companies should check and plan the legal requirements and formalities to be completed very carefully in advance in order to be well positioned here and minimize risks for travellers and companies. ESTA violations can have lifelong consequences for business and private trips to the USA.

• for longer-term work stays: Companies should develop a good strategy and allow sufficient time (at least 6-8 months) to apply for a work visa. Any extensions should also be initiated in good time to avoid an unwanted departure from the USA.

Our team of experts in the field of US immigration will be happy to answer your questions and provide further information.

You can also listen to our podcast on the topic of US immigration.