Navigating Business Immigration Under the New Administration

During his campaign, President-elect Donald J. Trump repeatedly pledged that, if reelected as president, he would implement “the largest domestic deportation operation in American history” and move to change current immigration law and enforcement.

He signaled his intention to reduce legal immigration and eliminate humanitarian programs, which would significantly affect the US employee talent pool. Employers should be prepared to navigate these changes and understand their potential implications for the workforce and human resource (HR) strategies.

Destabilized Workforces in Certain Industries and Regions

At any company in any industry that relies on immigrant workforces or that may have unauthorized workers, the board will want to ensure that the organization is ready to address the potential disruption to workforce stability and attendant costs. Trump’s plan to begin immediate deportations will likely affect many workers—both those who have irregular status and those who live in mixed-status families—and lead to significant reductions in the availability of workers. Trump has also signaled that he will seek to end several existing lawful humanitarian programs, such as Temporary Protected Status for a number of nationalities and Deferred Action for Childhood Arrivals, stripping work authorization from a material number of current workers. Industries that rely heavily on immigrant workforces, such as agriculture, construction, and hospitality, may face acute labor shortages as a result of deportations and the elimination of work authorization programs. This will likely increase labor costs and cause operational disruptions as companies lose workers and compete for a smaller pool of available talent. As staffing agencies will be similarly affected by increased enforcement, resources to fill open positions may be significantly limited and more expensive than in recent years. In addition, companies whose workforces include unauthorized workers, even if senior management and their boards do not have direct knowledge of this, will be at greater risk for worksite law enforcement actions and, in some cases, criminal liability.

Furthermore, heightened enforcement measures will, as in the prior Trump administration, create an atmosphere of fear and uncertainty among immigrant employees, which can affect their productivity and morale. At any company where this is expected to have a material impact, the board will want to ensure that the organization has HR strategies and adequate resources to maintain stable and productive workforces in this environment.

Challenges in Talent Acquisition

Corporate boards should also consider whether companies are prepared for workforce disruption arising from actions aimed at reducing legal immigration. A reduction in legal immigration under the new administration may have far-reaching implications for talent acquisition, particularly in industries such as technology, consulting, health care, and engineering. Many employment-based visa categories, including the H-1B professional visa and employment-based green cards, may be subject to stricter standards, higher wage requirements, longer processing times, and increased filing fees. Travel bans and disruptions to consular services would affect the mobility of multinational executives and other key foreign national employees. To the extent that this impacts C-suite succession planning, a corporate board will want to ensure that the company has a strategy in place for addressing these issues.

There are a variety of proactive steps that companies can take to mitigate these challenges. These may include assessing current workforce strategies and policies and developing new avenues for talent development, such as partnerships with universities and vocational training institutions, to build a pipeline of skilled workers. Additionally, companies may need to explore alternative talent acquisition strategies, such as remote work arrangements or reallocating certain resources to global offices.

Aligning HR Strategies and Compliance in a New Political Landscape

Corporate boards should align HR strategies with the new political landscape. In addition to optimizing effective workforce planning, HR and legal leadership should keep themselves informed about changes in immigration policy and take necessary action to avoid the penalties and reputational damage of worksite enforcement. These actions may include the following:

• HR should review current immigration programs, procedures, and budgets and make any necessary adjustments in anticipation of the expected changes, and establish robust immigration policies, protocols, and training.
• Multinational companies should develop contingency plans to reduce the risk of complications in the transfer of managers or specialists from foreign offices.
• To reduce compliance risk, companies should audit their I-9 work authorization records and compliance documentation for H-1B visas and permanent labor certification green card programs in anticipation of increased enforcement.

In connection with mergers and acquisitions, due diligence should include an assessment of the target company’s immigration compliance to avoid post-closing legal risk and the potential for business disruption in the event of a government audit.

Crisis Communication and Clear Messaging

During periods of uncertainty, effective corporate communication is paramount. Crisis management plans should be regularly updated and include clear, consistent messages for employees, customers, and the public. This includes addressing any concerns related to changes in immigration policy and the steps being taken to ensure compliance and support the workforce.

In the event of a sudden disruption in the workforce, a raid, or another crisis, companies should have protocols for:

• communicating with the media, customers, and other external stakeholders;
• internal messaging and resources for employees;
• internal leadership, escalation, and external legal resources for handling an enforcement action or other crisis; and
• strategies for ensuring business continuity, such as alternative outside vendors.

Corporate boards should regularly review and update their crisis management plans to ensure that they are up-to-date, the company is prepared for any potential scenarios, and the company has retained the appropriate legal and crisis management professionals.   

The Trump administration’s stated approach to immigration policy and enforcement will likely pose significant challenges to corporate America. It is crucial that companies anticipate and address these changes and assure their internal and external stakeholders that they are fully prepared to navigate the uncertainty. By proactively addressing workforce stability, talent acquisition, HR and legal compliance strategies, and crisis communication plans, corporate boards can mitigate the potential business impact and instill confidence that they are prepared for the changing political and legal landscape.

Sidley Austin is a NACD strategic content partner, providing directors with critical and timely information, and perspectives. Sidley Austin is a financial supporter of the NACD.

Marketa Lindt is a partner in Sidley Austin’s Immigration Practice, where she works with US and multinational corporations to implement best-in-class, efficient business immigration visa programs to optimize their ability to attract and retain foreign national talent. She also serves as an immigration specialist in mergers and acquisitions and counsels and defends organizations in immigration-related enforcement proceedings.

David Diorio is a senior managing associate in Sidley Austin’s Employment, Labor, and Immigration group. He practices primarily in the area of business immigration law.