The Trump campaign relied heavily on the promise to curb illegal immigration and to create more jobs for Americans. What wasn’t as clear in the rhetoric is that the Trump administration also intends to limit American businesses’ freedom in legally hiring foreign talent. We know with certainty that once the Trump Administration is in power, we will see sweeping changes to our immigration laws and policies, including the H-1B program.1 How? Well for one, several changes were implemented during the last Trump term and secondly, there were even more changes that they tried to implement that didn’t make it past federal courts. What is different this time? Trump’s team of legal experts have reviewed these obstacles and devised ways to overcome them in the upcoming term.
H-1B Program
The H-1B program allows U.S. companies to temporarily employ foreign workers in specialty occupations that require theoretical or technical expertise, such as IT, engineering, finance, and healthcare. To be eligible for the H-1B visa, the applicant must have a specialized bachelor’s degree or equivalent and employers must demonstrate that the foreign worker’s position is necessary and will not negatively impact U.S. employees.
The H-1B visa is heavily relied upon by US technology companies due to the lack of US workers in science, technology, engineering, and math (STEM). In fact, 45% of workers in the STEM field are foreign-born, and this is not due to a failure by US companies to hire qualified US workers. 2Realistically, US companies have very little incentive to hire a foreign worker in the US, due to the limited options in visa types and availability and costs associated with the program. However, despite these limitations, the dire need for talent means that in 2025 U.S. Citizenship and Immigration Services (USCIS) received approximately 479,953 H-1B registrations. Of these, 135,137 registrations were selected per a lottery system, resulting in a selection rate of about 28.7%, clearly demonstrating the necessity of foreign workers for US companies.3
Changes Implemented During Last Trump Administration Term
During the first term, the Trump administration sought several updates to the H-1B program and successfully implemented many. Other proposals were attempted but ultimately blocked by federal courts. You may remember the “Buy American and Hire American” (BAHA) executive order, which covered many nationalistic changes, many affecting the H-1B program. Some of the successful changes that were implemented include:
- Increased Scrutiny & Denials of H-1Bs: The Administration directed the U.S. Citizenship and Immigration Services (USCIS) to apply more stringent criteria for H-1B applications, leading to higher denial rates. According to data from the National Foundation for American Policy, H-1B denial rates rose from 6% in FY 2015 to 24% in FY 2018 under Trump. This shift was part of the “Buy American and Hire American” (BAHA) executive order to protect U.S. jobs.
- Revised Definition of Specialty Occupations: The Administration redefined what constituted a “specialty occupation,” making it harder for companies to prove that certain jobs required specialized skills and thus qualified for H-1B sponsorship. This change affected the eligibility of many applicants, particularly in fields like IT and engineering.
- Heightened Wage Requirements: Trump’s administration introduced interim rules requiring companies to pay higher wages to H-1B workers to ensure that they did not undercut U.S. workers’ wages. This measure aimed to prioritize higher-skilled and higher-paid foreign workers over lower-wage applicants.4
- Limiting Third-Party Worksite Approvals: Policies limited the approval periods for H-1B workers placed at third-party client sites. Employers had to provide detailed evidence and contracts proving that work would be performed at those sites for the entire requested period. This increased the administrative burden on companies using H-1B workers in consulting or outsourcing arrangements.5
Ultimately the changes were intended to protect US workers. There is no data to demonstrate that was the result. What we do have is data that suggests many companies adjusted by either outsourcing work or shifting operations abroad to access needed talent. Further, many businesses reported difficulties in hiring due to the tightened H-1B regulations.6 This was particularly impactful in the tech industry, where companies rely heavily on foreign talent to fill specialized roles. Reports from the U.S. Chamber of Commerce and tech advocacy groups highlighted that stricter immigration rules led to talent shortages that hindered growth and innovation.7 Most of the changes were reversed by the Biden administration, and the approval rate for H-1B petitions increased significantly to 98% for fiscal year 2020.8
Changes Expected in Upcoming Trump Administration Term
We can look to previously implemented policies, unsuccessful proposed changes, and new proposals from the Heritage Foundation to paint a realistic picture of what the H-1B program will look like once Trump takes office. The Heritage Foundation and the Trump administration have a symbiotic relationship, with the foundation influencing policy directions and providing intellectual backing for many of Trump’s initiatives.9 The foundation’s most recent proposals overcome the legal hurdles experienced during the last term so that previously unsuccessful changes may be implemented in the upcoming term. A summary of these anticipated changes includes:
- Re-implementing prior changes: Re-implementing BAHA, providing again for increased scrutiny and denials, narrowing the definition of specialty occupation, and increasing wage requirements.
- Rescinding Work Authorization for H-4 Spouse Visa Holders: H-4 spouses would have work authorization revoked. Such change was attempted during the last administration but was unsuccessful.
- Modification of H-1B Lottery System: Trump’s administration attempted to replace the random lottery system for H-1B visas with one prioritizing applicants with the highest salaries or those in highly specialized fields.
- Fee Increases to Government Forms: The Trump administration pushed for significant increases in the fees associated with various immigration applications, including those for employment-based visas.
- Changing the Prevailing Wage Rule for H-1B and PERM Applications: The administration issued a rule to raise the minimum prevailing wage levels for H-1B, H-1B1, and E-3 nonimmigrant visa programs, as well as the PERM labor certification program.
In addition to the above-mentioned expected changes, there is also current bipartisan immigration legislation in Congress, including the H-1B and L-1 Visa Reform Act, which aims to introduce reforms that offer limitations for work visas and protect American jobs. These legislative proposals are in stark contrast to the actual data from US companies who attempted to hire foreign workers in the last year, the year before, and the year before that. Which leads us to ask, who are these changes intended to benefit? US workers? US businesses? US development and innovation?
Overall we anticipate significant hurdles to the H-1B program, resulting in a higher rate of denials for new and current petitions that require extensions. US employers will likely experience higher associated costs and wage requirements as well. These changes will increase the burden on a program already oversubscribed and a visa only granted to less than a quarter of applications submitted by US employers.
– Erin Elliott (Ustaoglu), Esq., Founding Attorney for Elliott Immigration Law
