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As January 2025 approaches, individuals and businesses across the United States feel a growing sense of uncertainty surrounding potential changes in U.S. immigration policy. Despite President-Elect Donald Trump’s assurance that Project 2025 will not dictate his administration’s agenda, his recent appointment of Tom Homan, former Acting ICE Director and contributor to Project 2025, as Border Czar suggests that some aspects of Project 2025 may still shape the future of U.S. immigration policy. Drawing on our experiences from the first Trump administration and a careful analysis of Project 2025 recommendations, the Chicago immigration law firm of Zneimer & Zneimer anticipates the return of a stricter immigration enforcement agenda. Here, we provide a closer look at anticipated policy changes, reinstatements, and potential legal options.

Policies Likely to Reappear

  • Increased Requests for Evidence and Denials: During Trump’s first term, USCIS issued an unprecedented number of RFEs and Notices of Intent to Deny, adding complexity to the approval process. This trend could continue, especially in business and family immigration, resulting in possible delays.
  • Mandatory Interviews: Project 2025 favors reinstating in-person interview requirements for adjustment of status, naturalization, and visa applicants, which may further contribute to backlogs and extend processing times.
  • Changes to Forms, Fees, and Filing: Anticipated changes could include updated forms and an emphasis on online filing. Pay.gov issues and unexpected fees, especially those tied to non-asylum applications funding asylum processing, may add unplanned expenses and confusion.
  • Termination of DACA, TPS, and Humanitarian Programs: Project 2025’s recommendations target DACA, TPS, and other humanitarian protections, potentially impacting Afghan, Ukrainian, and other protected individuals.
  • Reduced Asylum and Refugee Admissions: We expect stricter eligibility standards and lower quotas for asylum and refugee admissions, potentially slowing down humanitarian processing.
  • Increased Employer Audits and Site Visits: FDNS site visits and audits may increase, affecting businesses that sponsor foreign workers under programs like H1B and PERM.
  • No Deference to Prior Adjudications: Reinstating a policy that requires all renewal cases to undergo new scrutiny, Project 2025 rejects deference to prior USCIS approvals, adding potential hurdles to previously approved cases.
  • Travel Bans and Security Vetting: Additional security measures, including intensified vetting and administrative processing, could lead to new travel bans and prolonged processing times.
  • Public Charge Requirements: Project 2025 calls for strict public charge criteria, likely reintroducing Form I944 and its stringent financial requirements.
  • Family Detention Policies and the Flores Settlement: Project 2025 aims to overturn the Flores Settlement, which protects immigrant children in detention. Ending Flores could lead to prolonged family detentions and potential family separations, sparking significant litigation efforts.
  • Remain in Mexico Policy: The “Remain in Mexico” policy may reemerge, requiring asylum seekers from Central and South America to wait outside the U.S. while their cases are processed.

New Proposals from Project 2025

  • Deportations and ICE Raids: Project 2025 advocates for expanded ICE operations and deportations, which could strain agency resources.
  • State Cooperation with Immigration Enforcement: FEMA funds could become contingent on state cooperation with ICE, including sharing DMV and other state records.
  • Stricter Eligibility for T and U Visas: Project 2025 proposes heightened eligibility standards for humanitarian visas, including the power to pause certain applications for backlogged visa categories.
  • ICE and USCIS Restructuring: Project 2025 recommends aligning ICE’s mission more closely with immigration enforcement, proposing that USCIS focus primarily on screening and vetting functions.
  • Elimination of T and U Visas: The elimination of visas for trafficking and crime victims under Project 2025 would limit relief to those actively cooperating with law enforcement, favoring the S visa as the primary form of relief.
  • Detention and Bond Reforms: Project 2025 proposes strict guidelines for bond issuance, aiming to prevent noncitizens from “bonding out” before case resolution.
  • Increased Security in the Student and Exchange Visitor Program (SEVP): ICE may further restrict student visas from countries considered national security risks.
  • Merging Immigration Functions: Project 2025 recommends merging ICE, CBP, and USCIS functions to create a more cohesive enforcement body.
  • Denaturalization and Criminal Investigations Units: The reinstatement of a denaturalization unit within USCIS, in addition to a criminal investigations unit, would aim to address fraud concerns in visa programs prone to exploitation.

Regulatory Agenda Highlights

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On February 20, 2017, John Kelly, the Homeland Security Secretary issued two Memoranda implementing President Trump’s Executive Orders.  The first Memorandum is entitled “Enforcement of the Immigration Laws to Serve the National Interest.”  It implements the Executive Order entitled “Enhancing um Public Safety in the Interior of the United States” that President Trump issued on January 25, 2017. The second Memorandum is entitled “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies,” and implements President Trump’s Executive Order “Border Security and Immigration Enforcement Improvements,” issued by President Trump also on January 25, 2017.

The subject of this blog is the first Memorandum, “Enforcement of the Immigration Laws to Serve the National Interest.”

This Memorandum rescinds all prior directives, memoranda, or field guidance, to the extent that they conflict with this Memorandum (“Kelly Internal Enforcement Memorandum”).  There are two exceptions that Secretary Kelly informs will be subject to future memoranda.  The first exception is the June 15, 2012 Memorandum that established DACA (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”), and second is the November 20, 2014 Memorandum that tried to establish DAPA (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents”), to the extent that these do not conflict with the Kelly Internal Enforcement Memorandum ((because of crimes, gang activities, drug trafficking, or security risk),

The following people then should be exempted from the Kelly Internal Enforcement Memorandum for now.  The June 15, 2012 Memorandum establishing DACA covers the following people:

  • An undocumented person who was under the age of 31 as of June 15, 2012;
  • Who came to the United States before reaching 16th birthday;
  • Who continuously resided in the United States since June 15, 2007, and up to the present time;
  • Was physically present in the United States on June 15, 2012, and at the time of applying for DACA;
  • Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
  • Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or was an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
  • Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The following people should also be exempted for now under the November 20, 2014 Memorandum.  That Memorandum tried to establish DAPA.  It also removed the requirement that limited DACA only to people who were under 31 as of June 15, 2012 (born  since June 15, 1981).  The November 20, 2014 Memorandum added the following persons yhsy should be currently exempt but subject to future memoranda and to the extent they do not conflict with the Kelly Internal Enforcement Memorandum:

  • An undocumented individual living in the United States who is the parent of a U.S. citizen or lawful permanent resident;
  • Who has lived in the United States continuously since January 1, 2010;
  • Had, on November 20, 2014, a son or daughter who is a U.S. citizen or lawful permanent resident; and
  • Is not an enforcement priority for removal from the United States under the Kelly Internal Enforcement Memorandum.

The Kelly Internal Enforcement Memorandum Except directs ICE to hire 10,000 officer and agents “subject to available resources” and to take actions “consistent with available resources.” While rescinding any prior memoranda regarding enforcement priorities, the Kelly Internal Enforcement Memorandum sets its own priorities, which includes aliens that are inadmissible or deportable for crimes, are security threat, or who have committed fraud or material misrepresentation for immigration benefits.  The Memorandum also priorities removal of applicants for admission, including people who have been physically present in the United States for less than two years.

The Memorandum further prioritizes removal aliens who:

  1. have been convicted of any criminal offense;
  2. have been charged with any criminal offense that has not been resolved;
  3. have committed acts which constitute a chargeable criminal offense;
  4. have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
  5. have abused any program related to receipt of public benefits;
  6. are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
  7. in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

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President Trump’s  Executive Order signed on January 27, 2017, “Protecting the Nation from Foreign Terrorist Entry into the United States”, also affects  Legal Permanent Residents from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen.  The Executive Order cites to 8 U.S.C. Sec. 1182(f), which permits the President “by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”  The Immigration and Nationality Act defines an “alien” as “any person not a citizen or national of the United States.”  8 U.S.C. Sec. 1101(a)(3).  Legal Permanent Residents fall under this definition.  Even though Legal Permanent Residents are not “applicants for admission” unless they have committed certain acts, the broad language of 8 U.S.C. Sec. 1182(f) references “entry” and not “admission” and therefore, the Executive Order will affect Legal Permanent Residents’ entry in the United States.

The Order provides DHS with limited discretion to permit entry to certain aliens on a case-by-case basis.  Sections 3(g) and 5(e) provide for discretion on a “case by case basis” but only if they determine that admission of such person is in the national interest.  Continue reading →

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President Trump issued an executive order entitled Enhancing Public Safety in the Interior of the United States, which includes a list of violations or acts that may make an alien a priority for removal.  The list describes aliens who are inadmissible or removable for having committed certain crimes, pose security threat, have committed fraud or have willfully misrepresented a material fact to apply for immigration benefits, arriving aliens, aliens who have entered without inspection and have been present for less than two years in the United States.

The order specifically states that the administration will treat as enforcement priority removable aliens (which includes aliens that may have overstayed, or are here unlawfully) if such aliens (a)  Have been convicted of any criminal offense; (b)  Have been charged with any criminal offense, where such charge has not been resolved; (c)  Have committed acts that constitute a chargeable criminal offense; (d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e)  Have abused any program related to receipt of public benefits; (f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or (g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

The order also requires DHS to use a report from sanctuary jurisdictions that refuse to comply with a federal detainer, and to publish on a weekly basis a “list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”

The order also seeks from all federal agencies “to the extent consistent with applicable law” to ensure that their privacy policies do not cover aliens other than lawful permanent residents.  In other words, the “personally identifiable information” of aliens (other than permanent residents) that may be on this list will be not be protected.  The Office of Management and Budget (OMB) defines personally identifiable information as follows:  “information which can be used to distinguish or trace an individual’s identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.”

The executive order does not appear to consider DACA recipients a priority, nor people who have been in the US unlawfully for more than two years, unless they have committed a crime, engaged in fraud, abused program to received public benefits, or otherwise present security threat.  There is hope that law abiding undocumented aliens will not be considered as priority for removal now and in the future. Continue reading →

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