USA: Trends & Developments in Immigration and International Law

Introduction: immigration at an inflection point

Over the past year, US immigration policy and practice have become more enforcement-driven. Processing across immigrant and non-immigrant visa categories is more exacting and agencies that implement the immigration laws have been revising policies and applying longstanding standards more narrowly. At the same time, immigration-related litigation in federal courts has expanded, with courts playing a more active role in reviewing enforcement actions, procedural changes, and the limits of agency authority.

These developments are occurring against the backdrop of increased demand by employers for global workforce mobility. US employers remain dependent on foreign talent, and cross-border movement remains integral to business operations. The result is a growing tension between enforcement priorities and practical workforce needs.

In this environment, interactions with the US immigration system can no longer be viewed as routine administrative undertakings. They require coordinated legal and operational planning, with greater attention to compliance and cross-border risk. This article reviews recent developments in employment-based immigration, enforcement and litigation trends, and the increasing relevance of international law considerations, including transnational enforcement mechanisms.

Employment-based immigration: heightened scrutiny and strategic recalibration

A shift toward restriction and unfavourable exercise of discretion

Recent processing trends reflect heightened scrutiny across employment-based immigrant and non-immigrant visa categories. Adjudicators within the Department of Homeland Security (DHS), Department of Labor (DOL), and Department of State (“State”) are leveraging their discretionary authorities in a manner that departs from well-established norms and increases unpredictability for applications and petitions that in the past had routinely been approved.

As one example, U.S. Citizenship and Immigration Services (USCIS) has increased its rate of Requests for Evidence (RFEs) from by an estimated 20%-30% in employment-based categories, during the current administration. These RFEs frequently focus on the sufficiency of evidence, a determination that generally rests upon the subjective judgment of an individual USCIS officer. For example, a common RFE topic for H-1B cases is whether the offered job qualifies as a specialty occupation or whether an employer can pay the offered wage and comply with prevailing wage requirements that apply to certain permanent and temporary workers. 

Petitioners, both individuals and employers, also are contending with elevated requirements to satisfy legal thresholds for obtaining certain visa classifications, such as in determinations of whether an individual has “extraordinary ability” or performs work that promises to serve the US “national interest.” The new higher level of scrutiny for these case types has led to much higher denial rates for these petition types. Collectively, these developments suggest that the government agencies processing immigration cases are taking an institutional posture that favours restrictive interpretation and creates elevated risk absent, and at times even despite, extremely compelling and well-documented evidence of eligibility. The new norm is frequently no norm at all.

Developments in the H-1B temporary worker programme

The H-1B non-immigrant visa category for temporary specialty occupation workers remains foundational to the US employment-based immigration system. However, it is presently subject to potential structural reform, increased agency scrutiny, and new and emerging cost considerations that may materially affect employer participation.

The current administration’s policy priorities higher-wage positions in the H-1B selection process. The new policy increases the likelihood of receiving one of the limited number of H-1B visas that are available each fiscal year for those who earn high salaries, significantly altering access to the programme, particularly for early-career professionals, start-ups, and smaller employers. Importantly, the salary-based advantage is occupation-specific, so the new system provides a greater opportunity for a highly compensated software developer to obtain an H-1B visa than a physician, nuclear engineer, or pharmaceutical researcher who earns an entry-level salary for their role.

In parallel, the President and agency policymakers have advanced initiatives that impose substantially increased fees on certain H-1B petitions, including a requirement that certain H-1B petitioners pay a USD100,000 fee, regardless of the type of job the worker would perform in the USA. A separate DOL policy proposal would significantly increase the wages that H-1B workers (as well as certain other temporary workers and individuals seeking lawful permanent resident (LPR) status, commonly known as a green card, through their employment) would have to be paid.  Although the agency has not finalised and implemented this provision, its consideration reflects a broader policy objective of discouraging perceived overreliance on the H-1B system and reallocating visa availability toward higher-compensated roles.

In practical terms, employers are encountering more rigorous examination of third-party placement arrangements (where workers are placed at worksite other than the petitioning employer’s) and remote work models, heightened scrutiny of the nature of the employer–employee relationship, and rapidly growing backlogs and delays in case processing. These trends, when combined with the prospect of significantly increased costs, are expected to have a disproportionate impact on smaller entities and emerging companies that depend on flexible and cost-sensitive workforce models, as well as organisations that otherwise experience slim profitability margins, including many within the healthcare industry.

Collectively, these developments suggest that the H-1B programme is undergoing a period of recalibration, in which both access and economic feasibility are becoming more constrained, thereby reinforcing the need for employers to engage in strategic workforce planning and exploration of alternative immigration pathways.

Compliance in a high-enforcement environment

Worksite enforcement measures also have intensified significantly, particularly in sectors such as hospitality, construction, agriculture, and food processing. Federal authorities, including U.S. Immigration and Customs Enforcement (ICE), have expanded investigative activity and increased inter-agency co-ordination, resulting in a more data-driven enforcement environment.

A central feature of this trend is the evolving treatment of Form I-9 compliance. Recent ICE guidance reflects a far more stringent approach to violation classifications, with errors historically treated as “technical” increasingly characterised as “substantive.” This shift has meaningful consequences: substantive violations are not subject to post-audit correction and may result in civil penalties assessed on a per-form basis. As a result, certain minor omissions, incomplete fields, or missing dates may now give rise to immediate liability, notwithstanding the existence of supporting documentation relating to compliance elsewhere in the employer’s records.

These developments underscore a broader and more aggressive enforcement posture in which Form I-9 compliance actions serve as a front-line enforcement and deterrence mechanism. Employers should therefore anticipate more frequent audits and a heightened risk of penalties for non-compliance.

In this environment, proactive compliance is essential. Employers are increasingly conducting internal audits, implementing targeted training, and ensuring that both paper and electronic I-9 systems meet statutory and regulatory requirements. The margin for error has narrowed considerably, requiring a level of diligence commensurate with other high-risk regulatory obligations.

Global mobility and outbound immigration

A growing trend under the current administration is the increase in outbound immigration from the USA, particularly among internationally mobile professionals. This shift appears to be driven in significant part by broad political and social tensions that have prompted some individuals to seek greater geographic and legal flexibility. As a result, there has been a noticeable rise in interest in obtaining a second citizenship and residence-by-investment programmes, as well as ancestry-based pathways in Europe, Canada, Latin America, and other jurisdictions. For many, these options are viewed as a form of long-term contingency planning.

At the same time, employers are expressing growing concern regarding cross-border travel by employees. Enhanced rigour in inspection protocols at US ports of entry, combined with expanded vetting and shifts in discretionary enforcement policies, have made routine international travel less safe and less predictable. Individuals with valid visas or even lawful permanent resident status are more frequently required to undergo secondary inspection with sometimes lengthy associated delays.

In response, companies are taking a more cautious approach to international travel by their employees, including pre-travel risk assessments and closer co-ordination between legal, HR, and compliance teams. Demand for real-time legal support at ports of entry has also increased. Grossman Young & Hammond’s TranscendEntrySM programme is responsive to this shift, providing on-call legal assistance to travellers navigating inspection, admissibility, and enforcement issues at US borders.

Border enforcement and admissibility trends

The past year has seen a marked shift in how inspection and admissibility determinations are being conducted at US ports of entry. Enforcement authority at the border has always been broad, but the exercise of that authority has become increasingly assertive and less predictable.

As noted, non-citizens are frequently subject to secondary inspection. These referrals may be triggered by concerns relating to prior immigration history, pending applications with USCIS, travel patterns, past interaction with law enforcement, or involvement in certain sensitive industries, among other reasons. Secondary inspection often involves extended questioning, review of data stored on electronic devices, and, in some instances, requests for access to social media or professional communications. 

There is also a noticeable increase in reported instances of individuals being subjected to expedited removal by DHS officers at the border, withdrawing their applications for admission, and being paroled into the USA for deferred inspection to resolve problems identified during their inspection. These mechanisms allow officers to resolve admissibility concerns at the border and prior to admission without involvement of the immigration court, but they can carry significant consequences, including potential bars to visa issuance and re-entry or disruption to existing immigration status of individuals. These disruptions carry significant consequences and costs for US employers.

Another emerging issue involves heightened scrutiny of an individual’s intent in seeking to enter the USA. Travellers applying for admission under non-immigrant visa classifications are facing more detailed questioning regarding employment activities, remote work, and long-term plans in the USA. This is particularly relevant for individuals working in hybrid or cross-border roles, where assessments of authorised activity are often legally complex.

Travel bans and adjudicatory pauses

Compounding the difficulties posed by the various challenges described above, the Administration has implemented a complex matrix of nationality-based bars to admission, pauses on immigrant visa issuance by the State Department, and pauses on adjudications on immigration benefit requests filed with USCIS. The President has issued proclamations that bar State Department issuance of all or certain immigrant and non-immigrant visa types and admission to the USA for nationals of 39 countries that have been deemed high-risk. For its part, the State Department has placed a hold on the processing of immigrant visas for nationals of 75 countries on grounds that the department is undergoing a full review of screening and vetting policies to ensure immigrants from high-risk countries do not unlawfully utilise public benefits in the USA or become a public charge. 

In similar fashion, USCIS has placed a pause on the adjudication of most benefit requests for individuals from the aforementioned 39 countries included in the Presidential Proclamations. In late March, USCIS issued a release indicating that the hold had been lifted on certain types of adjudications, but the impact of that release on most USCIS decisions for foreign citizens who are subject to the pause is unclear.

The upshot of these policies for affected individuals and their employers can be dramatic. Due to the USCIS adjudications pause, many workers are experiencing a lapse in their permission to work while their request for an extension of or change to an employment-authorised non-immigrant status (eg, H-1B status) or an extension of the validity of their employment authorisation document (EAD) remains undecided. While awaiting a decision on these requests, employees frequently must be removed from payroll, causing major disruptions to their employer’s workforce and to their ability to provide for their families.   

Litigation, enforcement, and policy developments

Expansion of interior enforcement

Immigration enforcement has expanded both at the border and within the interior of the USA. Arrests and removal proceedings have increased. Concurrently, detention capacity has expanded based on a large increase in funding from Congress. Greater reliance is being placed on custodial detention during removal proceedings, and there has been an increase in more stringent monitoring of non-detained individuals through the use of ankle bracelets, facial recognition programmes on telephones, and other technology.

This expansion has generated significant legal challenges, particularly with respect to the duration and conditions of detention and access to legal counsel. These issues are now the subject of extensive litigation across multiple jurisdictions. Additionally, the Board of Immigration Appeals held that immigration judges lack the authority to grant bond hearings or release to non-citizens who entered the USA without inspection and admission, which has resulted in increased detention on that basis and a corresponding uptick in habeas corpus litigation in the federal district courts.

Federal–state tensions

Tensions between federal and state authorities have intensified, reflecting divergent policy approaches to immigration enforcement. While some jurisdictions have sought to limit co-operation with federal authorities, others have pursued more expansive enforcement measures. Tensions were exacerbated by the Department of Homeland Security’s surge enforcement operations in the District of Columbia, Los Angeles, Chicago, and Minneapolis. These conflicts have given rise to a substantial body of litigation addressing questions of federal pre-emption, the permissible scope of state and local involvement, and the constitutional boundaries of enforcement authority. The resulting jurisprudence continues to shape the operational landscape for both governmental actors and affected populations.

Procedural developments and judicial fragmentation

The immigration court system continues to face substantial backlogs and resource constraints, prompting procedural reforms purportedly aimed at increasing efficiency but that will also result in fewer non-citizens winning relief from removal and more removals from the USA. These include modifications to motion practice, expanded use of remote hearings, and efforts to streamline case processing at the immigration court level. There may also be potentially sweeping changes to the way in which appeals are processed before the Board of Immigration Appeals based on regulatory changes that have been subject to litigation. While such measures may alleviate delays, they also raise concerns regarding procedural fairness and meaningful access to adjudication, particularly for vulnerable populations. 

At the same time, broader judicial developments have contributed to an increasingly fragmented legal landscape. The Supreme Court has held that federal courts generally lack the authority to issue “universal” or “nationwide” injunctions that block federal policies. As a result, immigration policies may take effect in certain jurisdictions while remaining enjoined in others.

Taken together, these procedural and judicial dynamics introduce additional complexity for both litigants and adjudicators, requiring more jurisdiction-specific strategies and reinforcing the uneven application of immigration law across the USA.

Third-country removals: expanding use and emerging legal tensions

Federal authorities have increasingly relied on third-country removal arrangements, under which non-citizens are removed to countries other than the country to which they were ordered removed. These mechanisms are being used with greater frequency in cases where repatriation is impracticable, delayed, or prohibited by law, but it has also been used for its deterrent effect including, in rare cases, where the designated country is prepared to accept the non-citizen. Third-country removal, and the threat thereof, have become an increasingly important component of current enforcement strategy.

At the same time, these practices have generated significant legal controversy. In the aftermath of a surprise shadow docket ruling from the U.S. Supreme Court that overturned a district court’s injunction mandating due process protections prior to a third-country removal, courts have considered what procedures, if any, non-citizens are entitled to prior to a third-country removal. 

A notable and developing trend involves tensions between enforcement actions and immigration court determinations. In particular, there have been instances in which removals to third countries have proceeded notwithstanding prior grants of protection under the Convention Against Torture (CAT) or related relief issued by immigration judges. These cases raise substantial due process concerns and are likely to remain a focal point of litigation, especially where the receiving country presents potential risks of onward removal or inadequate protection.

The government has also relied on asylum co-operative agreements, which are bilateral treaties between the USA and another country allowing the USA to transfer asylum seekers to a third country to seek protection there instead of in the USA, to pretermit (effectively, deny) non-citizens’ asylum applications in US immigration courts. This prevents those asylum seekers from receiving a full hearing on the merits of their applications before an immigration judge. This practice has been subject to litigation in multiple federal jurisdictions. 

As a result, third-country removals represent an area of growing legal uncertainty, with implications for both enforcement practices and the scope of humanitarian protections under US immigration law.

Humanitarian pathways and protection mechanisms

The legal framework governing asylum and related humanitarian protections continues to shift in a more restrictive and enforcement-oriented direction.

Adjudicatory practices now reflect heightened evidentiary scrutiny, with asylum officers and immigration judges applying more rigorous credibility assessments and requiring increased corroboration. At the same time, expanded use of expedited removal, particularly credible fear screenings conducted under compressed timelines, has resulted in more claims being resolved at earlier stages of the process.

These trends have been reinforced by renewed efforts to limit or altogether eliminate access to asylum at the southern border. Recent policy initiatives have effectively restricted asylum eligibility based on manner of entry and prior transit through third countries, operating in practice as a de facto bar on many claims. These measures are subject to ongoing litigation.

The cumulative impact has been particularly significant for applicants from Venezuela, Cuba, Nicaragua, Haiti, Honduras, El Salvador, and Guatemala, as well as individuals from conflict-affected regions such as Afghanistan and Ukraine. In parallel, third-country processing frameworks have expanded, introducing additional procedural barriers and further complicating access to protection.

Temporary Protected Status (TPS) for individuals from many countries remains in flux after the Department of Homeland Security terminated or declined to extend prior designations. TPS designations and renewals – particularly for nationals of Venezuela, Haiti, El Salvador, Honduras, Nicaragua, and Sudan – continue to be shaped by litigation and shifting policy priorities, creating uncertainty for beneficiaries. 

Major humanitarian parole programmes have been terminated, including for Cubans, Haitians, Nicaraguans, and Venezuelans (CHNV) and Family Reunification Parole (FRP) processes. These terminations are the subject of ongoing federal litigation.

Taken together, these developments reflect a system in which access to humanitarian protection is increasingly constrained, adjudication is more exacting, and outcomes are shaped by a combination of policy volatility and legal uncertainty.

International law and transnational enforcement mechanisms

Immigration practice increasingly intersects with international legal frameworks, particularly in matters involving transnational repression, politically motivated prosecutions, and cross-border enforcement actions. In such cases, effective advocacy requires engagement not only with domestic immigration law, but also with opaque international systems that can have immediate immigration consequences.

Trends in transnational repression

International law enforcement co-operation tools – most notably INTERPOL Red Notices and diffusions – have become increasingly consequential in the immigration context. While designed to facilitate legitimate cross-border policing, these mechanisms are increasingly misused by certain states to target political opponents, dissidents, and private actors in commercial disputes.

Recent legal analysis highlights that such misuse is not merely anecdotal, but systemic in certain jurisdictions, particularly where rule-of-law protections are weak. Once issued, these notices can trigger cascading consequences across multiple jurisdictions, including travel restrictions, detention, reputational harm, and adverse immigration outcomes.

Procedural challenges and transparency limitations

Although INTERPOL maintains internal compliance mechanisms, referred to as “corrective measures,” to address misuse, their operation remains largely non-transparent. These measures may include supervision of member country bureaus, suspension of access rights, or data correction and deletion. However, INTERPOL does not publicly disclose which countries are subject to such measures, the conduct at issue, or the outcomes achieved.

This lack of transparency presents a structural challenge. While corrective measures are framed as remedial rather than punitive, their limited visibility undermines accountability and may reduce their effectiveness in deterring repeated abuse.

Advocacy strategies and practical implications

In response, practitioners are increasingly adopting co-ordinated, multi-jurisdictional strategies. These include pursuing relief before INTERPOL review bodies, presenting sophisticated arguments in US removal proceedings to preserve eligiblity for bond and immigration relief, and engaging in diplomatic advocacy where appropriate. In practice, effective representation often requires aligning immigration claims with broader international law arguments, including abuse of process, lack of due process, and the political character of underlying charges.

Collectively, these developments underscore the growing importance of international legal literacy in immigration practice. As transnational enforcement mechanisms play a more prominent role, the ability to navigate both their substantive risks and procedural limitations has become critical to protecting mobility and immigration status.

Conclusion

The US immigration landscape is increasingly defined by heightened enforcement, more restrictive adjudication, and ongoing legal uncertainty, alongside the growing influence of international legal considerations.

In this environment, immigration strategy is best understood as risk management. Employers and individuals must anticipate policy shifts, assess compliance exposure, and develop contingency plans responsive to a changing regulatory framework. As traditional pathways become more constrained, alternative options including investor-based and extraordinary ability classifications are assuming greater importance, while some stakeholders are also evaluating opportunities in more predictable jurisdictions.

At the same time, employers are rethinking long-term workforce strategies, including diversifying hiring practices, expanding remote workforce models, and more closely integrating immigration planning with broader business objectives.

Effective navigation of this landscape requires a co-ordinated and forward-looking approach that combines legal expertise with strategic flexibility in response to evolving domestic and international developments.