On January 20, 2025, Chief Justice John Roberts swore in Donald J. Trump as the 47th President following his decided Electoral College win. Unlike his first term, President Trump will enter office having won the popular vote and with Republican majorities in both the House of Representatives and Senate. When coupled with the inherent powers of the President to make policy via Executive Order and the ability to shape policy, process, and posture through agency appointments and directives, and considering his campaign’s fixation on the issue and the executive branch appointments proposed so far, Trump 2.0 appears primed to swiftly introduce and implement sweeping changes to the U.S. immigration system. If the last half decade of Supreme Court jurisprudence is any indication, Trump 2.0’s efforts are likely to go unchecked.
While foreign nationals, immigration attorneys and the general populace may have been caught slightly off-guard when Trump 1.0 wasted no time in keeping his campaign promises, (i.e., the administration announced the first Muslim Ban within a week of taking office on January 20, 2017) there is no doubt within the community whether Trump 2.0 “means what he says” when it comes to immigration: We can feel confident that Trump will at least try to follow-through on public statements or other policy proposals floated. In that vein, immigration practitioners and other stakeholders can also anticipate upcoming changes based on experience and relevant trends during Trump 1.0 and use those lesson to inform how to prepare for prospective targets of anti-immigrant executive action on an individual and organizational level. Put differently, even if Trump 2.0 may be emboldened by Republican control over the Executive and Legislative Branches and assured by the Supreme Court’s rightward shift, immigration attorneys are also in a better position to forecast and preempt potential shifts in immigration policy and equip clients with the wherewithal to proactively manage and, when needed, respond to Trump 2.0’s measures.
A key pillar of Trump 2.0’s immigration policy is his stated intent to remove any and all undocumented foreign nationals present in the United States. The extent to which he will achieve this goal remains to be seen as it inherently poses almost insurmountable logistical challenges as well as dramatic impact to certain areas of the economy. What we can predict with near certainty is one method by which the Trump administration will try to do so: through workplace enforcement actions.
The Department of Homeland Security’s Homeland Security Investigations (“HSI”) and Immigration and Customs Enforcement (“ICE”) are the principal actors in this forum and may, without warning, appear at a workplace, effectively detain all persons on-site for interrogation, and search the premises for evidence of unauthorized employment practice and the unauthorized employees themselves. During such an investigation, HSI and/or ICE may also audit an employer’s I-9 records to ensure they have taken the proscribed steps to verify each and every worker’s employment authorization within the requisite time period. By way of comparison, Trump 1.0 conducted 12,000 I-9 audits in 2020 while the Biden Administration only conducted 400 such audits last year. Thus, employers should not be surprised if, or when, HSI or ICE officers appear at their door.
With that in mind, employers can take preemptive steps to prepare for uninvited government visitors and avoid, or minimize, the negative impact(s) of such visits. These steps include but are not restricted to the following:
Importantly, be proactive. Those who represent employers should reach out to clients now and encourage them to take the above steps. Waiting for what will come is not enough. The old adage of an ounce of prevention will be worth a pound of cure has never been more true.
