Hiring of high-skilled foreign graduates of US colleges will likely run into new hurdles under a second term for Donald J. Trump, who for months attacked immigrant communities and promised mass deportation for undocumented immigrants.
His election victory will potentially mean new restrictions on the legal immigration system that rarely featured in campaign discourse, but is essential for many employers to find high-demand workers in industries like tech and engineering.
International college graduates pursuing H-1B visas and workers seeking employment-based green cards can expect the process “to be more bureaucratic, more delayed, with more requirements imposed—the same as we saw the last time,” said David Bier, director of immigration studies at the Cato Institute, a libertarian public policy think tank.
Although USCIS completed an overhaul of the annual lottery that awards the visas earlier this year, it has yet to finalize remaining provisions of the proposed regulations, which many attorneys criticized for narrowing the definition of the types of “specialty” occupations that qualify for the visa.
“There is still time for it to be finalized,” said Jorge Loweree, managing director of programs and strategy at the American Immigration Council, a nonpartisan group that advocates for a more welcoming immigration system. “We hope the administration will ultimately move forward with doing so.”
Representatives of the Trump campaign weren’t immediately available to provide comment.
New Visa Hurdles
H-1B visas are most heavily used for tech jobs and are the the most typical route for international graduates of US colleges to pursue an employer-sponsored visa status. The annual cap of 85,000 new slots for the H-1B specialty occupation visas is set by statute.
The Trump administration could revive attempts to scale back use of the visas. It previously tried to issue regulations hiking the minimum wage required for companies to pay workers on H-1B visas.
Those regulations were blocked by federal court rulings. But officials could issue new regulations to price out many employers and restrict paths like Optional Practical Training that allow workers to stay in the US while pursuing the H-1B lottery.
US Citizenship and Immigration Services in 2017 also dropped a longstanding policy giving deference to previous agency decisions on visa eligibility when an immigrant worker on an H-1B or other employment-based visa sought to extend their status. The Biden administration restored the so-called “prior deference” policy and later included it in proposed regulations on the program released last year.
Removing it again could drain resources at USCIS as the agency reopens reviews of eligibility for cases adjudicated years before.
“I don’t see any reason why they wouldn’t follow through with that regulatory agenda,” said Sam Peak, labor and mobility policy manager at the Economic Innovation Group, a public policy group focused on economic policies benefiting entrepreneurs and distressed communities.
Trump’s campaign platform promised to prioritize merit-based immigration, and he said in one interview that foreign graduates of US colleges should receive green cards to stay and work in the country. But Trump made a similar promise before his first White House win and subsequently made employment-based visa options more restrictive, Bier said.
Sand in the Gears
Without scaling back the size of congressionally authorized visa programs, the Trump administration “threw sand in the gears” at USCIS, imposing more requests for additional documentation for visa applicants and spiking the denial rate for petitions, said Loweree.
“The ultimate impact is fewer people obtained immigration benefits,” he said. “We don’t know for sure what they’ll do this time around but they have a track record of doing it already.”
That extra scrutiny wasn’t limited to just the H-1B visa program, but also applied to L-1 visas for executives and managers and the O-1 visa for workers with extraordinary ability, said Tahmina Watson, an immigration attorney at Watson Immigration Law. The administration also imposed new interview requirements for employment-based visa applicants who were previously exempted.
“What we saw develop was an invisible wall creating barriers at every level,” she said. “It clogged up the system and immediately created very long backlogs.”
Much of the Trump administration’s regulatory agenda was stymied by legal battles and a slow transition period. But it could move much quicker to implement its immigration priorities in his second administration, said Jorge R. Lopez, chair of the Global Mobility & Immigration Practice Group at Littler Mendelson P.C.
“It’s going to be different this time around,” he said. “They’ve got the game plan in place, the players they need for things to move forward.”
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