If elected president, Donald Trump’s immigration plans could mean international students choose other countries, and many aspiring immigrants will find themselves out of luck. Analyzing Trump’s first term and his expected advisers’ plans in a possible second term indicates that new policies will have a profound effect on employers, students and high-skilled professionals. Policies may include restricting Optional Practical Training for international students and measures that cause individuals waiting years for employment-based green cards to leave the United States.
Previous Immigration Restrictions Against International Students
Using the federal government to limit or reduce the labor supply was the operating principle behind many of the Trump administration’s first-term immigration restrictions. Based on the “lump of labor fallacy,” which assumes (economists say incorrectly) that new workers must compete for a fixed number of available jobs, the Trump administration blocked the entry of immigrants and visa holders during the Covid-19 pandemic, put new immigration obstacles in the path of foreign-born scientists and engineers and enacted other policies.
The Trump administration placed on the regulatory agenda a rule to restrict Optional Practical Training, which allows international students to gain experience by working in their field for 12 months. The Obama administration issued a rule that permitted students in science, technology, engineering and math fields to extend OPT for an additional 24 months.
The rule was needed due to legal challenges after the Bush administration introduced STEM OPT. Bush officials hoped STEM OPT would help the United States attract international students and give employers and students additional opportunities to gain H-1B status in the annual lottery.
The Trump administration did not publish its rule to restrict Optional Practical Training. “[White House Senior Adviser Stephen] Miller pushed for numerous policies that never became reality, including the elimination of a program that allows international students who earn STEM degrees in the U.S. to work for up to three years in the country on their student visas,” reported the Wall Street Journal’s Michelle Hackman. “In those cases, Miller was blocked by more business-minded members of the administration, notably Trump’s son-in-law, Jared Kushner.” Kushner is not expected to play a formal role in a second Trump administration.
To understand Miller’s perspective, it is helpful to look back on S. 2934, a bill he drafted in 2015 when working for Sen. Jeff Sessions (R-AL). That bill prohibited international students with master’s or bachelor’s degrees from working in the United States in H-1B status without first gaining 10 years of experience in a foreign country, a fundamental change in U.S. immigration policy. Individuals with a Ph.D. from a U.S. university first would need to work two years in another country to be eligible for an H-1B visa. Any employer then would need to overcome other impediments before being allowed to hire them in America.
Miller and other Trump officials may not need to end Optional Practical Training to discourage or prevent international students from working in the United States. They could burden OPT with requirements that make it untenable for students and employers. That was the model with H-1B visas. The Trump administration enacted measures that raised denial rates, costs and uncertainty until judges ruled the policies unlawful, forcing a legal settlement. Trump officials also published an H-1B rule that would have made the category unusable for many employers. A court blocked the rule on procedural grounds.
Immigration Worries For Students In A Second Trump Term
Trump floated (on a podcast with fundraisers) but never promoted an idea to give all international students green cards after they graduate from U.S. universities. The policy is unlikely to be attempted during a second Trump administration. Immigration attorneys worry about new restrictions that affect international students should Trump become president, not the implementation of expansive policies.
“My biggest concerns are about discouraging international students and scholars from coming to the United States,” said Dan Berger of Green & Spiegel. “During the last Trump administration, the visa process got harder, with processing times going up, longer security checks and many more questions.” He points to the “Muslim ban,” policies during Covid-19 and other measures that created uncertainty and had “a chilling effect on attracting international talent.”
“A new Trump administration might try to crack down on H-1B work visas in a variety of ways, including higher denial rates, longer processing times and making the eligibility requirements more restrictive,” according to Cornell Law School professor Stephen Yale-Loehr, an advisor to the National Foundation for American Policy. “Since H-1Bs are a common way international students seek to stay and work in the United States after they graduate, any H-1B restrictions would heighten their worries, such that they might be less likely to come to the United States in the first place.”
The Trump administration proposed several restrictions on international students. A court blocked Trump officials from tightening policies on “unlawful presence” for students who fall out of immigration status. The Department of Homeland Security also published a proposed rule to limit study in the United States to a fixed admission period. That would have caused many international students to potentially leave the U.S. and not be eligible to work in the United States for employers. The Trump administration prohibited work on Optional Practical Training at third-party locations. It backpedaled after being sued for changing the policy by editing the DHS website rather than through normal notice and comment procedures.
After Stephen Miller argued for banning Chinese students from the United States, Trump officials settled on restricting the entry of many Chinese graduate students, exchange visitors and researchers, a policy the Biden administration maintained. Trump officials could enact a broader ban on Chinese students in a second term.
How New Immigration Restrictions Could Affect Green Card Applicants
New policies could harm applicants waiting years for their employment-based green cards. Due to the low annual limit on employment-based immigrant visas and the per-country limit, over one million Indians, including dependents, now wait in the first, second and third employment-based green card categories. The United States loses talent because of the annual limits on H-1B and employment-based immigrant visas, according to Mark Barteau, who chaired a committee on immigration policy for the National Academy of Sciences.
First, Trump officials could thwart individuals who apply for or wait for employment-based green cards by use regulatory means to price their salaries out of the labor market. In 2020, the Department of Labor published a rule that significantly raised the minimum wage required for employers to pay H-1B visa holders and employment-based immigrants via the permanent labor certification process known as PERM. As a result, the DOL rule, in many cases, increased the minimum salaries by up to 100%, with employers required to pay $208,000 a year for over 18,000 combinations of occupations and geographic labor markets, regardless of skill level and position.
A judge blocked the rule because Trump officials could not provide a sufficient legal basis for publishing it as “interim final,” a designation that allows a rule to go into effect immediately without a public comment period. Judges might be less likely to stop a similar rule that inflated salary requirements if officials follow the normal regulatory process.
The Trump administration was not attempting to solve an existing problem since academic research has concluded that H-1B professionals are paid the same or higher than comparable U.S. workers. Moreover, along with the required salary, government and legal fees can add $30,000 to employer costs for filing an initial H-1B petition and an extension, along with $10,000 to $15,000 for sponsoring an H-1B visa holder for a green card. According to USCIS, the average salary for an H-1B visa holder in computer-related occupations in 2023 was $132,000, and the median salary was $122,000.
Second, if denials of H-1B petitions increase, individuals waiting for green cards may be forced to leave the United States. Under Trump, denial rates for H-1B petitions for continuing employment (generally extensions of current visa holders) rose from about 3% to 12% in FY 2018 and FY 2019. A legal settlement in 2020 forced USCIS to stop several of the Trump administration’s practices. That caused denial rates to return to pre-Trump levels.
Third, Trump officials in a second term can end or curtail work authorization for the spouses of H-1B visa holders waiting for employment-based green cards. That would make it difficult for many families to wait years for an employment-based green card. In an April 2018 letter to Sen. Charles Grassley (R-IA), USCIS Director Francis Cissna pledged to “remove H-4 dependent spouses from the class of aliens eligible for employment authorization, thereby reversing the 2015 final rule that granted such eligibility.”
The Trump administration did not publish a rule to stop providing work authorization for spouses, possibly because of an already full immigration agenda. However, it adopted other restrictive measures. “By adding redundant and unnecessary steps and processes, they were able to bring H-4 and L-2 EAD adjudications to a halt,” said Jon Wasden of Wasden Law. “A process that the agency [U.S. Citizenship and Immigration Services] claims takes only 12 minutes to complete ended up taking over a year. A second Trump administration will likely use similar illegal means to achieve their desired policy ends.”
If Donald Trump regains the presidency, international students and applicants for employment-based green cards may find Trump’s immigration policies will affect them more profoundly than many today imagine.