President Trump’s immigration orders and what they mean for employers

Torys’ Canadian and New York offices will be providing regular briefs on the legal ramifications of the tariffs and other cross-border policy developments on the horizon.

Since taking office, President Trump has signed numerous executive orders meant to reshape U.S. immigration policy. We discuss two executive orders set to have a notable impact on companies with cross-border operations and a U.S. workforce, as well as the impact of the rescission of several Biden-era executive orders.

Executive order on “America First” trade policy

The executive order promoting an “America First” trade policy directs federal agencies to investigate trade deficits, adopt recommendations to enhance national security and promote domestic investment and productivity. The order specifically focuses on examining existing foreign trade agreements for unfair trade practices and establishing the “External Revenue Service” (ERS), a new federal agency tasked with collecting tariffs and other trade-related revenues.

Of particular note to Canadian companies is the mandated 2026 review of the Canada-United States-Mexico Agreement (CUSMA). Pursuant to this executive order, in addition to the regularly scheduled 2026 review process related to CUSMA, the United States Trade Representative is tasked with consulting with the heads of relevant executive agencies and federal department to assess whether CUSMA continues to benefit “American workers, farmers, ranchers, service providers, and other businesses”. In addition to its trade-related provisions, CUSMA includes provisions authorizing the use of TN visas, which are non-immigrant visas specifically provided to Canadian and Mexican professionals to allow them to work in the United States. This heightened review is expected to result in the use of TN visas undergoing increased scrutiny, which may impact both visa holders as well as new applicants.

Executive order on protecting the United States from foreign terrorists and other national security and public safety threats

This executive order raises immigration screening standards by implementing “enhanced vetting” for all foreign nationals applying to enter the U.S., as well as those already in the United States. It also calls on agencies to re-establish uniform baselines consistent with those in place during the first Trump administration, which is expected to further increase the difficulty of obtaining or extending a visa. Although this is likely to disproportionately impact visa holders and applicants from “high-risk” countries, individuals born in “high-risk” countries who currently hold the citizenship of another country (such as Canada) will also be subject to enhanced vetting. Further, the lawful visa programs under review will include those used regularly by Canadian businesses, such as the H-1B (specialty workers), L-1 (intra-company transfers), and the TN (professionals). As a result of both the review of these visa programs and the enhanced vetting procedures to be enacted, foreign nationals, including Canadian workers and business travelers, may experience increased delays in receiving visas, difficulty obtaining visa extensions and difficulty traveling to or from the U.S., particularly while initial applications or applications for visa extensions are undergoing review.

Revocation of Biden-era orders

President Trump also revoked numerous Biden-era orders that had streamlined the adjudication processes of the U.S. Citizenship and Immigration Services (USCIS), granted USCIS more deferential power and reduced the number of Requests for Evidence (RFEs) and denials for immigration applications. As a result of these revocations, the processing of petitions and applications by USCIS is expected to slow down, with an increase in RFEs and denials. It is also expected that Immigration and Customs Enforcement (ICE) will have increased authority to pursue enforcement actions with respect to employers, which is likely to result in an increased number of I-9 audits, employer site visits and workplace investigations to ensure compliance with immigration law.

Practical takeaways for clients

• It is likely that temporary visa programs, such as B-1, B-2, H1-B, L1, and TN, among others, will be scaled back.
• Visa adjudication for both initial applications and applications for extension is expected to take longer and to result in more RFEs and, ultimately, more denials. Changes are expected to include extended wait times for visa appointments, increased scrutiny for all applicants, but especially for individuals born in “high-risk” countries (regardless of their current citizenship), as well as biometric and interview requirements for all visa programs.
• Stricter immigration controls may lead to labor shortages in industries particularly dependent on an immigrant work force, such as agriculture, construction, and hospitality.
• Private equity sponsors and other companies with operations or significant investments in the U.S. should prepare for increased scrutiny from U.S. immigration officials by ensuring that they are, and remain, compliant with all immigration-related legal requirements, including I-9 and E-Verify requirements.
• Sellers in M&A processes should expect greater scrutiny on immigration matters during due diligence in the context of transactions, as well as increased risk of audits and investigations by the government.
• Employers with U.S. operations are likely to face increased costs for ensuring compliance. They may also face disruption as a result of more limited visa pools, longer wait times for visas and uncertainty about visa employees’ ability to remain with the business.

 
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