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.
Read More: Forbes