The H-1B visas of H-1B workers could be threatened by the incoming Trump administration — Visa Lawyer Blog – November 18, 2024
The second term of Donald Trump promises to bring new challenges for H-1B workers, including a hike in the mandatory salaries paid by U.S. employers and increased scrutiny leading to a predicted surge in Requests for Evidence and H-1B visa denials. A second term for Donald Trump promises to bring a new set of challenges for H-1B workers, including a hike on mandated salaries paid by U.S. employers, and increased scrutiny leading to a predicted surge in Requests for Evidence and H-1B visa denials.
About the H-1B Work Visa
H-1B workers are a subset of professional workers that have long filled a critical need in the U.S. labor market, especially for those working in the sciences, technology, engineering, and mathematics (STEM) fields.
Every year, U.S. employers from hundreds of industries use the H-1B visa program to bring highly skilled and well-educated foreign professionals to work for them in the United States. To qualify for an H-1B visa, the worker must have a job offered by a U.S. company to work in “specialty occupations” that require a baccalaureate or equivalent work experience. Applicants must demonstrate that they have the academic and professional qualifications to work for the U.S. employer.
Only 65,000 H-1B visas are available every year, with an additional 20,000 visas made available to professionals with a U.S. master’s degree or higher in their field.
The annual visa limits mean that the H-1B work visa program is a “lottery” based visa, requiring employers to submit an electronic registration every Spring, to have a chance of being selected.
Competition for the H-1B visa is fierce, with demand for visas far outpacing the number of available visas. Companies such as Google, Apple, Deloitte and Cisco, Ernst & Young Intel, Meta and IBM regularly recruit H-1B employees. Such workers have made immeasurable contributions to U.S. innovation and the economy.
Trump’s 2017 Executive Order “Buy American, Hire American”
Despite the importance of the H-1B work visa program for U.S. competitiveness, particularly in STEM, the Trump administration has repeatedly attacked the program, making clams that it does not protect the interest of American workers and is riddled with fraud.
During his first term in office, President Trump issued the “Buy American and Hire American,” Executive Order, which required U.S. employers to pay U.S. workers higher wages to protect their economic interests against those of foreign workers.
Claims of rampant fraud and abuse within the H-1B visa program were made, leading the administration to direct the Department of Homeland Security (DHS), and other federal agencies (including the State Department), to award H-1B visas only to the “most-skilled” or “highest-paid” workers. The impact of the order was that it discouraged U.S. employers from hiring foreign workers.
The executive order ushered in a series of restrictive immigration policies for H-1B workers including:
Rescinding USCIS deference policy to prior approvals for H-1B extensions
Expansion of Fraud Detection and Prevention’s site visits for H-1B and L-1 employers
- A surge in the rates of Requests for Evidence and denials issued for H-1B petitions (the largest percentage of denials witnessed than in the preceding four years of the H-1B program)
- Issuance of a memorandum directing USCIS officers to “review the Labor Condition Application (LCA) to ensure the wage level designated by the petitioner corresponds to the proffered position” and further stating that “
- f a petitioner designates a position as a Level I, entry-level position, for example, such an assertion will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation”
- Increased scrutiny by USCIS officers of the Labor Condition Application (LCA) and the wage level designated, resulted in a significant uptick in RFEs and denials beginning in the summer of 2017[i]These measures are likely to be resurrected by the incoming Trump administration.
- Surge in H-1B Denials During Trump’s First Term
According to the American Immigration Council, during Trump’s first term in office, denials of new H-1B petitions for initial employment rose from six percent in FY 2015 to a high of 24 percent in FY 2018, before dropping to 21 percent in FY 2019, and 13 percent in FY 2020.
After Trump left office, the denial rate fell to four percent in FY 2021, and only two percent in FY 2022 (the two lowest denial rates ever recorded).
Upon taking office in January 2021, President Biden signed the Executive Order, “Ensuring the Future Is Made in All of America by All of America’s Workers,” which revoked “Buy American and Hire American.”
Bad News for U.S. Employers and High-Skilled Immigrants
Trump’s election victory means the potential resurrection of “Buy American and Hire American,” which will make it increasingly difficult for U.S. employers to recruit and retain high-demand professionals in industries that are critical to the economy in fields like engineering and technology. Employers and high-skilled immigrants
Under the Trump administration, the H-1B application process and employment-based green card process will become more bureaucratic, face increased scrutiny, and result in delays where Requests for Evidence are abound. The Trump administration can easily pass new regulations and sign executive actions into law that will make it more difficult for U.S. companies to hire foreign workers. It could also restrict the issuance of Optional Practical Training (OPT), which has allowed graduates of U.S. colleges to work in the United States, while pursuing H-1B visas.
Although we cannot know for certain, the Trump administration has a track record of making legal immigration harder for H-1B workers.
The campaign previously said it supports merit-based immigration, and in an interview, Donald Trump said that foreign graduates of U.S. colleges should receive green cards to stay and work in the country. However, he quickly walked back those statements and continued his anti-immigrant stance in subsequent rallies.
Sadly, the Trump administration could be even more emboldened to pass restrictive immigration policies, considering that the Republicans have taken control of the House and the Senate, along with the Supreme Court of the United States.
This increased scrutiny is also likely to extend to L-1 visas for intracompany transferees and O-1 visas for individuals of extraordinary ability. The Trump administration could also reinstate the interview requirements it implemented in 2017 for employment-based applicants of green cards. The Biden administration exempted employment-based green card applicants from being interviewed and discontinued the Trump-era policy.
Develop a Plan of Action
While this information is not meant to stoke any fears, it is important for U.S. employers and foreign workers to consult with immigration counsel to develop a plan of action. Don’t sit back and wait. With an appropriate plan in place, you can get ahead of any potential obstacles and have a plan B.
If you need assistance with your immigration case, please contact our office for a consultation.
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