Throughout his presidential campaign, Donald Trump emphasized the need for stricter immigration policies, framing corporate immigration reform—an integral aspect of business immigration law— as a crucial element of his “America First” agenda. He pledged to safeguard American jobs by curbing what he described as the misuse of employment-based visa programs like the H-1B. His promises centered on revising these programs to prioritize high-skilled American workers and ensuring that U.S. businesses could not exploit the system to hire cheaper foreign labor at the expense of domestic employees. Notably, President Trump and senior White House advisers, such as Stephen Miller, have pledged that the second Trump administration will issue a series of executive orders aimed at drastically reshaping existing corporate immigration policies in the coming months. As Trump’s second term begins, it is clear that his administration will pursue rapid action to effectuate those promises.
When President Trump first took office in 2017, his administration enacted a sweeping set of actions, including the imposition of a travel ban targeting predominantly Muslim countries and the introduction of “extreme vetting” practices for visa applicants, among others. The H-1B visa program, which enables American corporations to hire foreign workers in specialty occupations, was a major target during Trump’s first administration. The first Trump administration published a restrictive H-1B rule in 2020. Although 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. Additionally, 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 2021 and 2.2% in FY 2022.
In addition, Trump’s June 2020 presidential proclamation suspended the entry of individuals to the U.S. on other select nonimmigrant visas, including H-2B, J-1, and L-1 visa holders, as well as their dependents. This proclamation came as an expansion to Trump’s executive order issued from April 22, 2020, suspending the entry of individuals traveling to the U.S. on an immigrant visa via applications for permanent residency (i.e., green cards).
President Trump has already issued a number of executive orders in the week following his inauguration targeted at curtailing immigration. One of his boldest orders attempted to end “birthright citizenship,” a century-old immigration practice which guarantees U.S.-born children American citizenship, regardless of their parents’ immigration status. Under the language of Trump’s order, the children of immigrants lawfully in the United States on temporary work visas – including H-1B visas – would not be granted American citizenship. For employers already anticipating major regulatory challenges to hiring foreign workers in the coming years, the order creates significant uncertainty and poses yet another hurdle to bringing in foreign talent. While attorney generals from 22 states have already sued to block President Trump’s recent move and a federal judge has issued a temporary restraining order blocking the changes from taking effect, Trump’s administration is expected to engage in lengthy legal battles fighting those challenges.
Looking ahead, we can likely expect similar changes and heightened restrictions on corporate immigration during Trump’s second presidency. Trump has long argued that the U.S. immigration system should prioritize “merit-based” immigration as opposed to immigrants entering the country through family reunification and humanitarian programs. While many of Trump’s attempted H-1B reforms faced significant legal hurdles during his first term, such as being blocked or overturned by the courts, we will likely see the following changes revived, among others:
- Modifying and enforcing stricter wage requirements for H-1B visa holders, requiring American business to pay higher wages to H-1B workers. Such changes could make it financially unfeasible for many companies and their foreign employees to obtain visas, especially in entry-level positions.
- Heightened Requests for Evidence (RFE’s) and denial rates for pending employment-based visa petitions. As noted above, denial rates skyrocketed during Trump’s first term, and RFE’s and denials significantly raise the financial burden on employers seeking legal immigration status for their foreign employees.
- Limiting the definition of “specialty occupation” for H-1B visas, thus making it more difficult to obtain visas for employment roles that do not generally require a specific or advanced degree.
These anticipated changes will have a significant effect on employers seeking to obtain employment-based visas for their foreign employees by raising the associated costs and potentially limiting the hiring pool as employees seek positions in countries with less-restrictive corporate immigration policies. While Galloway’s corporate immigration lawyers expect that many of these promised changes will face significant pushback and legal challenges, overall reductions in visa approvals and heightened enforcement measures will create a more restrictive environment for corporate immigration during Trump’s second term.
Disclaimer: This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between Galloway and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions.
Jennifer R. Buckingham, Esq.
Licensed in Louisiana, New York, Illinois
jbuckingham@gallowaylawfirm.com | 504-525-6802
Sanjay Das, Esq.
Licensed in Louisiana
sdas@gallowaylawfirm.com | 504-525-6802