Key Takeaways:
- Anticipate H-1B visa restrictions under a possible Trump presidency, potentially leading to tighter measures for tech companies relying on foreign talent.
- Trump’s first term saw increased denial rates for H-1B petitions, and if re-elected, a more stringent approach may further impact employers.
- Changes to H-1B rules, including defining specialty occupations and employer-employee relationships, could drive businesses away from IT services.
Anticipating H-1B Visa Restrictions under a Trump Presidency
The prospect of former President Donald Trump returning to the White House in 2024 could forecast tightening measures for companies utilizing H-1B visas, particularly those in the tech sector that heavily rely on foreign-born talent. With Trump’s recent win in the Iowa Caucus and leading in some polls against Joe Biden, businesses are advised to factor in these possible changes as they develop contingency plans.
Understanding H-1B Visa Changes During Trump’s First Term
Under Trump’s first administration, H-1B visa processes witnessed notable alterations, leading to heightened denial rates. During Fiscal Year (FY) 2018, the denial rate for H-1B petitions – predominantly for new employees subject to the annual cap – surged to 24%. This rate slightly declined to 21% in FY 2019. However, due to a legal settlement compelling U.S. Citizenship and Immigration Services (USCIS) to cease certain practices, this rate plummeted to 2% by FY 2022.
Denial rates for H-1B petitions concerning continued employment – usually extensions for current employees within the same company – experienced a rise to 12% in FY 2018 and FY 2019. These elevated denial rates forced many international professionals to depart the U.S. Following the legal settlement, the denial rate for continuing employment similarly dropped to 2% by FY 2022.
In the event of Trump’s re-election, a more stringent approach from USCIS adjudicators could lead to a resurgence in denial rates. Past lawsuits, even if successful, showed that such policy changes could linger for years. It signals a future where preparing for H-1B changes under Trump could be essential for employers.
Potential Resurrection of the 2020 H-1B Interim Final Rule
Trump’s team might revisit the H-1B interim final rule introduced in 2020 after addressing procedural flaws that initially halted its implementation. The Trump and Biden administration’s H-1B rules include similar restrictions on defining specialty occupations, demanding a “U.S. baccalaureate or higher degree in a directly related specific specialty or its equivalent” for the position.
Stringent Definitions and Employment Relationships
The Trump administration’s approach focused on restrictive definitions of a specialty occupation and employer-employee relationship, significantly impacting H-1B approvals for work at third-party sites. Following a narrower interpretation, the DHS proposed a one-year limit on H-1B approvals for those working at customer locations.
“The new DHS rule significantly changes the definition of an employer to allow DHS to require the customers of information technology and professional services companies to submit labor condition applications and H-1B petitions as if they were employers of the H-1B professionals, which they are not,”
This deterrence strategy aimed at complicating H-1B visa holders’ on-site performance at client locations could drive customers away from IT services companies utilizing this model.
Impact of the Department of Labor H-1B Wage Rules
October 2020 also observed the Trump Department of Labor implementing an interim final rule designed to effectively price H-1B visa holders out of the market by sharply increasing the required minimum wage. An analysis by the National Foundation for American Policy highlighted the impact:
“Under the new DOL mandated minimum salary, an employer in the San Jose, California area would pay an electrical engineer at Level 4 nearly $85,000 (or 53%) above the market wage… and 54% above the market wage at Level 1.”
Consequences of Tightened H-1B Visa Regulations
Research indicates that increased H-1B constraints could contribute to the offshoring of positions, investments, and innovative activities. Britta Glennon, Assistant Professor at the Wharton School at UPenn, articulates the counterproductive outcome of immigration restrictions:
“When U.S. firms are denied H-1Bs, they go abroad, setting up new foreign affiliates and hiring talent there instead of in the U.S… The results demonstrate an important unintended consequence of immigration restrictions: the movement of jobs and talent abroad, with major implications for U.S. competitiveness.”
The Potential for Increased Legal Challenges
It’s noteworthy that the Supreme Court is expected to rule on cases that address Chevron deference—a principle that gives federal agencies considerable interpretation leeway of statutes. Should the Trump-appointed justices vote to curtail Chevron deference, this could grant employers and others more legal options against restrictive immigration regulations.
Preparing for a Potential Rise in H-1B Changes Under Trump
In his prior term, President Trump extensively leveraged the authority under section 212(f) of the Immigration and Nationality Act to restrict the entry of immigrants and non-immigrant visa holders. Examples include an April 2020 proclamation suspending the entry of various immigrants and a June 2020 proclamation specifically aimed at H-1B, L-1, and other temporary visa holders.
While the efficacy of these proclamations was mitigated by the pandemic’s impact on visa processing and legal challenges, they demonstrate a blueprint Trump could revisit. With the Supreme Court’s decision in Trump v. Hawaii granting broad presidential authority in immigration matters, it underscores the need for businesses to prepare for potential policies that could limit H-1B visas and employment-based immigrants, including from Muslim-majority countries.
For current updates and details on the H-1B visa process, employers and potential visa applicants should consult the official USCIS website.
As companies look towards 2024 and beyond, anticipating these changes is crucial. A proactive approach may include enhancing internal training programs for local hires, exploring the sponsorship of other visa categories, and considering the relocation of roles and operations overseas to ensure uninterrupted access to skilled professionals.
With uncertainties looming over future immigration policies, organizations must remain vigilant and responsive – ready to navigate a dynamic regulatory landscape that may substantially affect their reliance on global talent.
Learn Today:
Glossary of Immigration Terminology
- H-1B Visa: A non-immigrant visa that allows U.S. employers to hire foreign workers in specialty occupations. The H-1B visa is typically sought by companies in the tech sector that require specialized skills not readily available in the U.S. workforce.
Denial Rate: The percentage of H-1B visa petitions that are rejected or denied by the U.S. Citizenship and Immigration Services (USCIS). The denial rate can vary from year to year and is influenced by factors such as changes in immigration policies and the discretion of USCIS adjudicators.
Fiscal Year (FY): The 12-month period used by the U.S. government for accounting and budgeting purposes. In the context of H-1B visas, the fiscal year runs from October 1 to September 30.
Continued Employment: The extension of H-1B status for current employees within the same company. Employees who are already working in the U.S. on H-1B visas may apply for continued employment to extend their stay.
Interim Final Rule: A temporary regulation or rule that is implemented without going through the usual notice-and-comment period required for most federal rulemaking. Interim final rules have the force of law, but they often invite public feedback and can be subject to legal challenges.
Specialty Occupation: A job position that requires specialized knowledge and a bachelor’s degree or higher in a specific field of study. The H-1B visa is specifically designed for individuals with expertise in specialty occupations.
Employer-Employee Relationship: The legal relationship between an employer and an employee, which is a key factor in determining H-1B visa eligibility. USCIS examines the nature of the relationship to ensure that the employer has control over the employee and provides a valid job offer.
Department of Labor H-1B Wage Rules: The regulations set by the U.S. Department of Labor that determine the minimum wage requirements for H-1B visa holders. These rules aim to ensure that H-1B workers are not being paid less than their U.S. counterparts.
Offshoring: The practice of moving business operations and jobs to another country, typically to take advantage of lower labor costs or other favorable conditions. Increased H-1B constraints may lead to offshoring as companies seek alternative sources of talent.
Chevron Deference: A principle that gives federal agencies a certain level of discretion in interpreting and applying statutes. Chevron deference allows agencies like USCIS to establish policies and regulations within the bounds of the law.
Section 212(f) of the Immigration and Nationality Act: A provision of U.S. immigration law that grants the President broad authority to suspend the entry of immigrants and non-immigrants into the country if their entry is deemed detrimental to the interests of the United States.
Muslim-Majority Countries: Refers to countries where the majority of the population adheres to the Islamic faith. In the context of immigration, limitations on entry from certain Muslim-majority countries have been a subject of policy discussion and legal challenges in recent years.
Note: The above definitions are provided based on the provided content and may not encompass all possible interpretations or variations of these terms. It is important to consult official sources and seek expert advice for accurate and up-to-date information on immigration terminology and policies.
As the possibility of former President Donald Trump returning to the White House looms, it’s wise to anticipate potential H-1B visa restrictions. Trump’s previous administration saw significant changes to the H-1B visa process, with heightened denial rates and restrictive definitions. With a potential resurrection of the 2020 interim final rule and increased legal challenges on the horizon, businesses should be prepared. For more information on H-1B visas and immigration updates, visit visaverge.com. Stay informed and ready to navigate the ever-changing landscape of immigration policies.
This Article in a Nutshell:
Companies should anticipate potential H-1B visa restrictions under a Trump presidency. Denial rates for H-1B petitions increased during his first term. Possible changes could include stricter definitions of specialty occupations and employment relationships. Increased restrictions may lead to offshoring and legal challenges. Businesses should be prepared to adapt their hiring strategies.
