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Experts brace for tougher H-1B crackdown in Trump's new term

Getting an H-1B visa in President-elect Donald Trump's second term might be difficult, but advisors such as Elon Musk could help tap the anti-immigration brakes.

Patrick Thibodeau
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Published: 07 Nov 2024

Ellen Sullivan, an immigration attorney in Massachusetts and founder of Cambridge Immigration Law, remembers President-elect Donald Trump's first term well. H-1B visa applications faced numerous and frustrating challenges and denials.

There were frequent requests for evidence (RFEs) even in cases that seemed "blatantly approvable," Sullivan said. Denials were often "legally wrong," she added, and contained cut-and-paste statements that didn't apply to specific cases.

"They, one, wanted to make things more difficult for people," Sullivan said. "Two, they wanted to slow things down. Three, they wanted to scare people away from continuing their applications."

Based on their experience during Trump's first term, immigration experts expect that his second term will crack down even harder on H-1B visa program applications. His administration has long been critical of the visa, accusing the program of bringing in lower-wage workers and contributing to the outsourcing of U.S. jobs.

Trump didn't change H-1B visa program

However, Trump's seemingly hardline immigration stance in his first term didn't bring significant changes to high-skilled visa programs, said Ron Hira, an associate professor of political science at Howard University who has testified before Congress on the H-1B visa program.

"There were no significant, or even minor, lasting reforms to high-skilled immigration policies to come out of, or even during, his first term," he said. Could it be different during a second Trump term? Hira said Trump's picks to head the departments and agencies that manage immigration will provide key clues.

The H-1B program is a temporary visa program issuing 85,000 visas annually. It is often used by people seeking employment-based green cards or permanent residency. But the visa program is controversial because of its use by offshore outsourcing firms that hire large numbers of visa workers and then move U.S. jobs overseas.

The Elon Musk factor

Another aspect drawing attention is Trump's relationship with Elon Musk, who has emerged as a top Trump donor, enthusiastic campaigner and critic of U.S. high-skill immigration policies. He might challenge the administration's hardliners. Last week on X, formerly Twitter, Musk wrote, "We have an upside down system that makes it hard for highly talented people to come to America legally, but trivial for criminals to come here illegally."

Trump has shown signs of softening on high-skilled visas. In June, he said during an episode of the All-In podcast that foreign students with college degrees "should get, automatically, as part of your diploma, a green card."

There's also the possibility of a Trump administration pushing for action in Congress. This week, Republicans won the Senate and could win the House. If that happens, "then the administration might be able to get something done in Congress," Hira said.

Buy American, hire American

In Trump's first term, the trouble began in H-1B processing with the "Buy American and Hire American" executive order in 2017, which became the basis for increased scrutiny of H-1B visa applications by the U.S. Citizenship and Immigration Services.

Immigration attorneys are bracing for even more scrutiny next year.

"I expect things to be much worse once they take over," said Tahmina Watson, an attorney at Watson Immigration Law in Seattle. "They had a playbook that they have really perfected during the first administration."

Litigation that challenges the Trump administration's actions might face obstacles this time around. "There are a lot of Trump appointed judges at the various courts," she noted.

But the H-1B program hasn't been smooth sailing under President Joe Biden's administration either.

Biden is getting tougher

Kathleen Campbell Walker, a former national president, general counsel of the American Immigration Lawyers Association and an attorney at Dickinson Wright, noted that in the past eight to 10 months, Biden's administration has increased RFE notices, which might be due to a lack of oversight and training. It is also considering a pending rule change of what constitutes a specialty occupation, requiring proof that degrees are related to the H-1B occupation.

Watson pointed out that the Trump administration brought more audits and other actions to employers. "I think we have a really challenging horizon coming to play regarding H-1B in particular," she said.

Immigration experts are recommending that people with immigration applications or those planning to file try to get as much done as they can before Trump's second term begins in January.

Coming back even harder

Pooja Mehta, an immigration attorney at Dalal & Mehta Law in Iselin, N.J., predicted that the challenges her clients faced in the past will likely return with even greater intensity.

"Everything we saw the first time is going to come back, and it's going to come back even harder," she said.

The first time around, Mehta recalled, officials were still figuring things out, adjusting policies and taking corrective steps every few months.

"Now," she said, "they have a foundation" to build on, making it likely that enforcement will be more consistent and potentially more restrictive.

Patrick Thibodeau is an editor at large for TechTarget Editorial who covers HCM and ERP technologies. He's worked for more than two decades as an enterprise IT reporter.

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