As president, Donald Trump did not enact any measures to increase access to H-1B visas and high-skilled immigrants, and a second term will likely be similar. Some observers have pointed to campaign statements, such as those Trump made on a Silicon Valley podcast, for signs of a welcoming approach. Others hope Elon Musk, who supported Trump’s election, will rescue high-skilled immigration policy. The most reliable indicator of what Trump’s presidency will mean for employers, H-1B visa holders and applicants for employment-based green cards remains the Trump administration’s record the first time Donald Trump occupied the White House.
Where Will The Restrictions On H-1B Visas And High-Skilled Immigration Begin?
An H-1B petition often remains the only way a high-skilled foreign national, including an international student, can work long term in the United States. The Biden administration can affect the Trump administration’s attempts to enact restrictions on H-1B visas. That is because, in October 2023, Biden officials published a proposed rule on “Modernizing H-1B Requirements.”
If the Biden administration does not finalize the H-1B “modernizing” rule before Joe Biden leaves office, a new Trump administration could issue the H-1B rule with its priorities rather than those of the Biden team. That new rule would likely be far more restrictive than the current H-1B regulation or what U.S. Citizenship and Immigration Services proposed in October 2023. Trump officials could sift through the comments, rewrite the rule and publish it as a final rule.
The Trump administration published a restrictive H-1B rule in 2020. A judge blocked the rule for violating the Administrative Procedure Act. Trump officials attempted to publish part of the rule again before leaving office but ran out of time. The rule included numerous provisions to prevent companies from employing foreign-born scientists and engineers, such as changing who and what positions could qualify for an H-1B specialty occupation.
If Biden officials prefer the H-1B rule to reflect their priorities, they must publish it soon and decide on its most controversial provisions. One significant measure in the proposed rule would narrow the positions considered H-1B specialty occupations by requiring a degree be “in a directly related specific specialty or its equivalent” for entering the occupation.” The Trump administration used identical language in its restrictive interim final H-1B rule that courts blocked. Seventy-four business, university, and economic development organizations signed a comment letter opposing the measure. A National Foundation for American Policy analysis found that 51% of U.S.-born individuals employed in computer occupations have degrees other than computer science or electrical engineering.
Employers and university groups supported the rule extending “cap-gap” protections for F-1 students “when changing to H-1B status,” allowing more organizations to qualify as H-1B cap-exempt nonprofit research institutions, granting more leeway for H-1B visa holders to become entrepreneurs and codifying “deference” for prior findings of fact when adjudicating applications, which can limit denials and Requests for Evidence.
Increasing Denials Of H-1B Visas And More Immigration Red Tape
If Donald Trump’s second term is like his first time in the White House, employers can expect immigration officials to increase red tape. By issuing new memos and policy guidance, Trump officials raised the denial rate for H-1B petitions for initial employment from 6% in FY 2015 to 24% in FY 2018 and 21% in FY 2019. After a legal settlement in June 2020, denial rates dropped below pre-Trump levels to 4% in FY 2021 and 2.2% in FY 2022.
Trump officials made it more costly to file for H-1B petitions. A Request for Evidence increases uncertainty and adds $2,000 to $4,500 in attorney fees. The Request for Evidence rate reached 60% for H-1B petitions in the first quarter of FY 2019, but in FY 2022 it fell to 10% after the legal settlement.
Pricing H-1B Visa Holders And Employment-Based Immigrants Out Of The U.S. Labor Market
Raising the required salary became another way Trump officials sought to make it difficult for employers to hire H-1B visa holders or sponsor foreign-born scientists and engineers for permanent residence. In 2020, the Department of Labor published a rule aimed at pricing high-skilled foreign nationals out of the labor market. The DOL changed the formula for calculating the prevailing wage, which acts as the minimum wage employers must pay H-1B professionals or green card holders through the permanent labor certification process.
The rule forced companies to pay foreign-born employees 40% to 100% more than comparable U.S.-born professionals. The rule required employers to pay a minimum wage of $208,000 yearly for over 18,000 combinations of occupations and geographic labor markets, regardless of skill level and position.
A judge blocked the rule because the Trump administration could not explain why the regulation needed to go into effect immediately (i.e., an “interim final” rule) without a public comment period. Academic research has found, in addition to legal and government fees, H-1B visa holders are paid the same or higher than comparable U.S. professionals.
An Immigration Restriction Against H-1B Visa Holders Working At Customer Sites
Trump officials sought to make it infeasible for an employer to send an H-1B visa holder to work at a customer’s location. A 2018 “Contracts and Itineraries” memo imposed new H-1B restrictions. USCIS limited the approval period for H-1B petitions. A judge cited the case of an H-1B petition approved for only one day.
In policy and attempted rulemaking, the Trump team adopted a controversial definition of what qualified as an employer-employee relationship, changing the long-held Department of Labor meaning. After a judge blocked the October 2020 interim final H-1B rule, the Trump administration posted online (but did not publish) a “final rule” in mid-January, together with a Department of Labor memo.
Trump officials thought they could prevent companies from employing H-1B professionals at customer locations if they shifted legal obligations onto customers. The Trump administration required the customers of information technology and professional services companies to submit labor condition applications and H-1B petitions, making the customers, in effect, employers rather than the recipients of services. For example, imagine a landscaping company telling a homeowner he or she needed to assume immigration obligations for the company’s employee who mowed their lawn. Few customers would take on legal obligations for people they cannot hire or fire. Companies that receive services and their suppliers would have been affected.
Making Life More Difficult For Families Waiting For Employment-Based Immigration
USCIS must approve H-1B extensions to allow individuals waiting years for employment-based green cards to stay in America. The significant increase in denials for H-1B petitions for continuing employment during the Trump administration forced long-time residents and employees out of the United States. The same could happen again due to new H-1B policies that increase denials or a rule that mandates salaries well above the market wage. The low annual limit on employment-based immigrant visas and the per-country limit mean that over one million Indians, including dependents, wait in the first, second and third employment-based green card categories, according to an NFAP analysis.
The Trump administration placed on its regulatory agenda a rule to end employment authorization for the spouses of H-1B visa holders waiting for green cards. That rule never materialized, though it could return in a second Trump term. Lawsuits alleged that Trump officials added procedures to prevent H-1B spouses from working, including requiring H-4 dependent spouses to obtain new biometrics. The delays threatened the work authorization of many spouses.
Hire American, Presidential 212(f) Authority And Immigration Legislation
In April 2017, the president issued a Buy American and Hire American executive order to mandate new immigration restrictions. The order called on agencies to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”
During the 2024 campaign, Donald Trump promised to reinstate the “Muslim ban.” After the Covid-19 pandemic began, the Trump administration used section 212(f) of the Immigration and Nationality Act to suspend the entry of immigrants, including employment-based immigrants, and temporary visa holders such as H-1B, L-1 and J-1 visa holders. Economists disputed the reasoning behind the 212(f) proclamations, implying the measures were done to take advantage of a health emergency.
The Trump administration will likely pursue immigration legislation that includes tighter asylum rules and enforcement provisions. It is less clear what measures on legal immigration would be in such a bill or how the legislation would fare. During his first team, Trump endorsed the RAISE Act, which would have reduced legal immigration by half and eliminated the employment-based immigration categories and all applications of those waiting in green card backlogs.
Potential Counterweights On High-Skilled Immigration Restrictions
Trump officials may need to overcome legal obstacles to pursue their agenda to essentially end the ability of employers to hire high-skilled foreign nationals in the United States, including international students. In 2020, a legal settlement with USCIS stopped many Trump administration practices that judges found unlawful and that had led to significant increases in denials of H-1B petitions and other employer problems. If USCIS violates that settlement, expect plaintiffs to return to court.
The Supreme Court’s end of Chevron deference to federal agencies may help businesses and universities in lawsuits against new restrictions that go beyond U.S. immigration law or regulatory authority. In June 2024, the U.S. Supreme Court ruled in Loper Bright Enterprises et al. v. Raimondo: “The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.”
On June 19, 2024, Donald Trump taped a podcast interview with venture capitalists and said he favored a policy where “you graduate from a college, I think you should get automatically as part of your diploma a green card to be able to stay in this country.” Trump pledged to address the issue on “day one.”
Trump’s podcast comments with campaign supporters may not become legislation. However, he garnered significant campaign funds and other support from Elon Musk and Silicon Valley executives who hold views on high-skilled immigration that appear diametrically opposed to those of Trump’s chief immigration aide Stephen Miller. When working for Sen. Jeff Sessions (R-AL), Miller drafted a bill prohibiting international students with a master’s or bachelor’s degree from working in H-1B status in the U.S. for at least 10 years. Few technology executives in America would likely view that as a sound policy.
Analysts point out that Elon Musk and other tech supporters of Donald Trump would do well to study immigration law to avoid being hoodwinked by administration officials who assure them new restrictions on H-1B visa holders or green card applicants are reasonable. The tech supporters might ask if they would find an immigration restriction acceptable if it were applied to their U.S. employees, such as being required to pay a U.S.-born employee 40% to 50% more than comparable professionals or prohibiting their employees from working at a customer’s location.
“Out of the gate, we are expecting immediate restrictions on and disruptions to all types of legal immigration, including skills-based immigration,” said Lynden Melmed, a partner at BAL and a former chief counsel of USCIS. “Over time, and as the impact of those policies reverberate through the economy, there will be voices inside and outside the administration calling for a different approach.”
Whether those voices will be effective in restraining the types of measures restricting high-skilled immigration seen in Trump’s first term is uncertain. “It is safe to say that, in 2025,” said Melmed, “every executive is going to get briefed on business and workforce disruptions driven by restrictive immigration policies.”