The first 100 days of a U.S. president’s term are widely recognized as a critical period that sets the administration’s tone, priorities, and capacity to govern effectively. This timeframe serves as a key benchmark for early success, as newly elected presidents often benefit from a political “honeymoon” with Congress and the public, creating a crucial window for advancing legislative initiatives and executive actions. Historically, administrations that capitalize on this momentum—such as Franklin D. Roosevelt’s New Deal and Joe Biden’s Build Back Better framework—can lay the foundation for broader policy agendas that positively impact the US economy. Conversely, failure to fulfill campaign promises or effectively manage emerging crises can quickly erode public confidence and result in legislative gridlock. While the 100-day milestone is largely symbolic, it remains a useful measure of how swiftly and decisively an administration can enact meaningful change.

At the time of writing, Trump’s second administration has been in office for just 50 days, yet it has already introduced policies that have raised deep concerns, particularly within the immigration community. The administration has pursued aggressive and often erratic policy changes, including mass deportations, attempts to undermine constitutionally guaranteed birthright citizenship, and abrupt procedural shifts that disrupt legal immigration pathways. Meanwhile, the imposition of steep tariffs on key trading partners such as Canada, Mexico, and China has heightened the risk of a global trade war, threatening economic stability. Immigration policies under Trump’s so-called “Extreme Vetting” initiative have proven to be more about bureaucratic obstruction than national security, turning routine processes into an unpredictable maze of redundant background checks, excessive scrutiny, and arbitrary delays. These policies have disproportionately harmed U.S. employers, families, and highly skilled foreign workers, all under the guise of safeguarding national interests.

Since Trump’s return to office, new trends in immigration adjudications have emerged, many of which do little to protect the U.S. economy or its workforce. Instead, these trends serve only to delay employers’ ability to hire the most skilled individuals available in the global labor market. Requests for Evidence (RFEs) have increasingly stretched the limits of executive authority, ignored the clearly defined roles of federal agencies, and revealed a fundamental misunderstanding of the regulations governing immigration law. Rather than improving efficiency or security, these policies have introduced unnecessary barriers, eroding confidence in the system and making the U.S. a less attractive destination for global talent. If the administration continues down this path, the consequences will be felt not only by immigrant communities but also by the American businesses and industries that rely on highly skilled foreign professionals to remain competitive.

Ability to Pay All RFE

An I-140 Ability to Pay (ATP) Request for Evidence (RFE) that examines a company’s entire roster of sponsored individuals is an aggressive and often burdensome inquiry from USCIS. Instead of focusing solely on whether the employer can pay the proffered wage for the specific beneficiary in question as required by the clear and unambiguous language of the governmenig statute, Trump 2.0 demands evidence that the company can simultaneously afford the salaries of all beneficiaries for whom it has filed I-140 petitions for the approvability of a single petition.

This significantly increases the employer’s evidentiary burden and compliance costs, as it requires comprehensive financial documentation, such as tax returns, audited financial statements, or payroll records, covering all sponsored employees. The implication is that USCIS is scrutinizing whether the company is overextending itself by filing too many immigrant petitions without sufficient financial resources to support them. This approach can be particularly problematic for businesses that operate with fluctuating revenue cycles, have made strategic hires in anticipation of growth, or rely on contingent employment structures where actual payroll obligations vary. Companies facing this type of RFE must often demonstrate a combination of financial health indicators, such as net income, cash flow, or existing payroll expenditures, to establish that their ability to pay is not just theoretical but consistently met in practice. While USCIS guidance states that ability to pay should be determined on a case-by-case basis, these RFEs can feel like a fishing expedition, forcing employers to justify hiring decisions far beyond what the regulations require, leading to delays, increased costs, and sometimes unjust denials.

This type of RFE places an undue burden on petitioning employers, forcing them to compile excessive financial documentation that is neither relevant nor required by statute. Moreover, it ignores the reality that many companies operate with dynamic hiring and payroll structures, where some I-140 beneficiaries may not yet be working for the employer, and others may never reach the adjustment-of-status stage. Additionally, by making the ability-to-pay determination based on cumulative wage obligations rather than individual cases, USCIS effectively imposes a new requirement not authorized by regulation, potentially violating the Administrative Procedure Act (APA) by introducing a substantive rule without proper notice-and-comment rulemaking. Courts have repeatedly held that agencies cannot impose new burdens beyond those explicitly required by law, making these broad RFEs legally questionable and a prime example of bureaucratic overreach.

Bona Fide Job Offer

The common law standard for a bona fide job opportunity in the employment-based immigration context generally requires that the job offer be genuine, available, and made in good faith. In labor certification and employment-based immigration cases, particularly those involving PERM labor certification and I-140 petitions, a bona fide job opportunity means that the position is not tailored specifically for a particular foreign worker, is open to qualified U.S. workers, and involves a legitimate employer-employee relationship.

One of the leading cases establishing the bona fide job opportunity standard is Matter of Modular Container Systems, Inc., 89-INA-228 (BALCA 1991) (en banc), in which the Board of Alien Labor Certification Appeals (BALCA) ruled that a bona fide job opportunity requires a genuine job vacancy available to U.S. workers. If the employer’s control over the position is so extensive that the foreign worker essentially dictates the terms of employment, or if there is evidence that the employer created the position specifically for the foreign worker rather than conducting a legitimate labor market test, the job opportunity may be deemed not bona fide.

In the I-140 immigrant petition context, particularly in the ability-to-pay and successor-in-interest scenarios, USCIS evaluates whether the employer has the actual intent and financial capability to employ the foreign national on a permanent, full-time basis. Courts and administrative bodies have consistently ruled that a sham job offer, one where there is no real intent to employ the beneficiary under the terms outlined in the petition, is not a bona fide job opportunity.

The common law standard, as articulated in agency guidance and case law, generally aligns with traditional employment tests that focus on factors such as whether the employer has control over the worker, the right to hire and fire, and the ability to direct the employee’s work. In some cases, USCIS or the Department of Labor (DOL) may scrutinize family relationships, employer financial stability, and job duties to determine whether the job offer is legitimate or merely a mechanism to secure an immigration benefit.

As a reminder, Green Cards are about a future job opportunity that will be entered into once a Green Card is approved. Since 45 has become 47, we’ve begun seeing USCIS overstep its bounds and effectively ignore that very frank legal reality.

One example of this overreach was the Department of Homeland Security’s (DHS) interference in the labor certification process, an area explicitly under the jurisdiction of the Department of Labor (DOL). In employment-based immigration cases, the DOL is responsible for determining whether a job opportunity is bona fide and whether qualified U.S. workers are available. However, under Trump-era policies, U.S. Citizenship and Immigration Services (USCIS), a DHS agency, began second-guessing DOL’s decisions, effectively forcing employers to reprove their labor recruitment efforts even after receiving labor certification. This undermined long-standing legal standards and placed unnecessary burdens on businesses trying to hire foreign workers. The Labor Certification process is designed to be the primary and final test of whether a job is open to U.S. workers, but USCIS, acting under DHS, began demanding additional proof beyond what the law required, ignoring the statutory framework that gives DOL sole authority over these determinations.

This overreach was not just bureaucratic inefficiency—it was a deliberate attempt to restrict employment-based immigration by imposing redundant and unlawful scrutiny on employers. The Trump administration’s interpretation disregarded clear legal precedent, including the Supreme Court’s doctrine that agencies must enforce laws as written. The statutory standard requires only that an employer show by a preponderance of the evidence that a bona fide job opportunity was available to U.S. workers. Yet, USCIS, emboldened by the administration’s broader anti-immigration stance, shifted the goalposts, demanding unnecessary proof beyond what regulations require. This regulatory overstep contradicted both the plain language of the law and the intent of Congress, which had tasked DOL—not DHS—with making determinations about labor market conditions. Employers faced increased denials and unnecessary delays, not because they failed to comply with the law, but because USCIS, under Trump’s directive, refused to accept DOL’s legally binding decisions. This expansion of DHS’s authority at the expense of DOL was emblematic of the administration’s broader efforts to circumvent existing legal frameworks to achieve its policy goals, regardless of statutory limits.

Elementary Misreading of Petitions and Filings

The Trump administration’s approach to employment-based immigration cases has been marked by a pattern of misreading petitions—either intentionally or through sheer incompetence—to justify denials or unnecessary requests for evidence (RFEs). Rather than adjudicating petitions based on the regulations as written and their own published instructions, USCIS under Trump frequently misinterpreted filings to create artificial deficiencies. This practice forced petitioners into an endless loop of responding to meritless RFEs, adding unnecessary costs and delays to the process. Employers and immigration attorneys increasingly found themselves responding to RFEs that completely ignored key evidence already included in the original filings. In some cases, officers would claim that a petitioner had failed to establish an essential eligibility requirement when, in fact, the requested evidence had been clearly provided and even explicitly referenced elsewhere in the USCIS notice. Such errors created the appearance of arbitrary adjudication, undermining confidence in the agency’s ability to follow its own rules.

Beyond basic misreadings, the administration routinely disregarded well-established legal precedent, often acting as if long-settled interpretations of immigration law no longer applied. For example, in employment-based immigrant and nonimmigrant visa categories, decades of administrative and judicial decisions had clarified how petitioners could demonstrate qualifications for specific categories. However, Trump’s USCIS ignored these precedents, abruptly rejecting evidence that had long been accepted as sufficient under prior administrations. This was particularly evident in cases involving extraordinary ability petitions, national interest waivers, and H-1B specialty occupation petitions, where adjudicators imposed new, unwritten standards that had no basis in law or regulation. By selectively enforcing inconsistent, extralegal criteria, the agency created a climate of uncertainty, where outcomes depended less on compliance with the law and more on the whims of individual officers emboldened by the administration’s anti-immigration stance.

Perhaps most concerning was USCIS’s failure to meet even the baseline standards of competent adjudication. Under Trump, officers routinely issued RFEs and denials rife with factual errors, logical inconsistencies, and even basic grammatical mistakes. Many notices contradicted themselves within the same document—asserting that evidence was missing on one page while acknowledging its existence on another. USCIS also frequently misapplied the legal standard of “preponderance of the evidence,” requiring petitioners to prove their cases beyond any reasonable doubt, a burden far higher than what the law actually demands. These errors, whether due to ignorance, carelessness, or deliberate obstruction, contributed to an unjustifiable deceleration of government efficiently and created an immigration system that has become increasingly arbitrary, unpredictable, and hostile to the American taxpayers that rely on them.

Importance of Competent Legal Counsel

In the face of bureaucratic overreach and inconsistent adjudication, highly skilled and competent legal counsel serves as a crucial safeguard against arbitrary decisions. Experienced immigration attorneys understand the complexities of both statutory and regulatory frameworks and can effectively push back when USCIS misapplies the law or ignores precedent. By crafting well-documented petitions, anticipating potential misinterpretations, and responding strategically to flawed Requests for Evidence (RFEs), attorneys ensure that their clients’ cases are presented as strongly as possible. Moreover, skilled counsel knows how to challenge wrongful denials, whether through motions to reopen or appeals, holding USCIS accountable to its own regulations and preventing the agency from unilaterally rewriting immigration policy through poor adjudication practices.

For individuals and businesses navigating this increasingly unpredictable system, having a knowledgeable attorney provides a sense of stability and reassurance. Rather than feeling helpless in the face of shifting policies and arbitrary decisions, petitioners can rely on legal experts who are well-versed in precedent and procedural safeguards. Attorneys not only help ensure compliance but also advocate for their clients when government agencies overstep their authority. While immigration policies may fluctuate with each administration, sound legal representation remains a constant—protecting the rights of immigrants, ensuring that cases are decided fairly, and pushing back against government overreach. With experienced counsel guiding the process, petitioners can move forward with confidence, knowing that their cases are being handled with precision and care.

For more information, or for a detailed conversation regarding your business practices or a recently received Request for Evidence, please schedule a time to speak here.

By: Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.

 We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.