H1B Policies after Trump 2024
Author: Carrie Peng, senior legal counsel, Blumsack & Canzano, P.C.
After Trump's election, what will be the future of the H1B policy?
1. Uncertainty in Policy Changes
Trump is considered one of the toughest U.S. presidents on internationals, including Chinese internationals living in the U.S., in recent decades. During his term, we witnessed numerous shifts in U.S.-China policies, including initiating trade and tech wars, and sharply criticizing China during the pandemic. Interestingly, however, a significant number of Chinese netizens expressed hope online that Trump would be re-elected as U.S. president.
Additionally, Trump did support granting green cards to college graduates in 2015, a stance more similar to that of his Democratic opponent at the time, Hillary Clinton. On her campaign website, Hillary promised to grant green cards to graduates holding master’s or doctoral degrees in STEM (science, technology, engineering, and mathematics). However, this proposal was met with strong opposition from Trump’s camp. It appears that Trump’s support for this idea was more likely a gesture aimed at appealing to business investors to attract more donors and supporters.
As it stands, Trump seems closer than ever to returning to the White House, and the future of U.S. immigration policy may see significant tightening in terms of processing procedures and standards. In fact, during his term, he implemented a series of policies aimed at restricting U.S. companies from using H-1B visas to recruit foreign technical talent.
2. A Historical Review of Trump's Policies
During Trump’s term, the H-1B visa policy underwent a series of restrictive measures.
First, in the 2016 campaign, Trump pledged to end the H-1B visa program, claiming that companies were abusing it to hire cheaper foreign labor, thereby harming American workers' interests. This promise was welcomed by certain voter groups but raised significant concerns among tech companies and international students who relied on these visas to work in the U.S. after graduation.
In 2017, Trump signed the "Buy American, Hire American" executive order, which led the U.S. Citizenship and Immigration Services (USCIS) to increase scrutiny on H-1B applications. This heightened scrutiny brought more Requests for Evidence (RFE) for application materials, resulting in a marked rise in rejection rates and stricter approval standards for H-1B visas.
In 2019, the Trump administration proposed a rule requiring H-1B employers to prove they were paying at least 45% above the industry average wage. That year, the H-1B visa rejection rate soared to 32%, compared to 10% in 2016. Behind these numbers was the Trump administration's stringent scrutiny of foreign high-skilled workers.
In May 2020, Trump signed Presidential Proclamation 10043, allowing consular officers to deny F/J visas to certain Chinese scholars, specifically restricting nonimmigrant visa entry for students from the “Seven Sons of National Defense” universities in China. Later that year, in October, the Trump administration announced a major reform plan for the H-1B visa program, eliminating the lottery system and prioritizing visa allocation based on salary levels. The new rule gave preference to higher-paid applicants, significantly affecting young entry-level workers and low-wage foreign workers. This policy shift was seen as further increasing the difficulty of obtaining an H-1B visa, particularly for those early in their careers with lower salary levels. In the same year, over 1,000 Chinese citizens had their visas revoked.
Describing Trump’s immigration policy as "unpredictable" is no exaggeration. From attempting to cancel OPT to raising the Prevailing Wage standard for H-1B visas and redefining “Specialty Occupation,” these policy changes have undoubtedly made it more challenging for international students to stay in the United States. This is especially true for those relying on the H-1B visa to work in the U.S. after graduation, as they now face unprecedented obstacles.
According to statistics from USCIS, each year, many applicants fail to secure an H-1B visa through the lottery system and are forced to seek other options to remain in the U.S. or return to their home countries. For those who are unsuccessful in the H-1B lottery, it may be worth exploring alternative options like the O-1 visa or the EB-5 U.S. investment immigration program.
3. Brief Introduction of EB-5 and O-1
In the face of the uncertainty surrounding Trump’s policies, some individuals may look into the EB-5 investment immigration program as it offers eligible families a relatively stable option. The required investment amount is divided into two tiers based on the project’s geographical location: $800,000 and $1,050,000. Although Trump attempted to raise this investment threshold, it was ultimately invalidated by a judge. The Biden administration has since adjusted the investment standards, providing a viable pathway for international student families seeking a green card through investment immigration.
Increasingly, international student families are beginning to plan for residency as early as freshman year. This way, by the time they graduate, they already have a green card, eliminating the need to compete in the H-1B lottery with other graduates. This broadens their job opportunities, as they no longer require employer sponsorship, making them more attractive in the job market. However, the EB-5 option requires families to have substantial financial resources, which may not be feasible for those with limited economic means.
For internationals who have achieved outstanding accomplishments in the fields of arts, film and television, or sports, the O-1 visa offers another pathway to stay in the United States. The O-1 visa has no annual cap, allows dual intent (the intention to immigrate while holding a non-immigrant status), and provides a unique opportunity for individuals with internationally recognized achievements in specific fields. The O-1 visa is intended for individuals with extraordinary achievements or abilities in science, arts, education, business, or athletics, or for those in the film and television industry who are nationally or internationally recognized for their exceptional accomplishments. O-1 visa holders are permitted to work in the U.S. in roles related to their field of expertise.
The future of the H-1B policy under Trump or any administration remains uncertain, reflecting the broader challenges of balancing domestic workforce interests with the need for global talent. As the immigration landscape evolves, internationals must weigh their options carefully, considering alternative pathways, while advocating for fair and transparent visa policies that foster innovation and global collaboration.
