Search
Contact
Login
Share this article
In this election cycle, the issue of immigration is not just about what is happening at the border. The direction of the H-1B visa program is also on the line.
The H-1B nonimmigrant visa program allows U.S. employers to hire foreign workers in specialty occupations to work temporarily in the United States. This in-demand program is the primary pathway by which employers can recruit and hire foreign workers with expertise in specialized fields such as technology, engineering and healthcare — often filling crucial skills gaps.
Since many immigration policy changes are made through the executive branch, the winner of the election will heavily influence the future of employment-based immigration. We can already predict what both potential futures might look like, assuming a Harris administration would likely continue the modernization initiatives started by President Biden and a Trump administration would bring back policies similar to those it attempted to issue at the end of its first term.
As a reminder, here is a look at the H-1B visa regulations the former president had in the pipeline before the 2020 election and what they could mean for a potential second Trump administration.
In its final days in office, the Trump administration issued a series of regulations aimed at restricting the use of the H-1B program as part of its implementation of Trump’s April 2017 “Buy American and Hire American” executive order. The order laid the foundation for many of the policies Trump’s administration pursued to restrict employment-based immigration programs. In a second Trump term, we would expect to see similar policy priorities.
The first of Trump’s H-1B regulations was the October 2020 Department of Labor wage rule, an Interim Final Rule (IFR) that — effective immediately — significantly increased wage obligations for H-1B, H-1B1, E-3 and PERM programs. The rule required that minimum salaries for foreign-born professionals be set far higher than what was typically paid to similar U.S. employees. No advance notice was given to employers, who were left scrambling to adapt.
The rule was blocked in federal court in December 2020, but had it not been, it likely would have had the effect of pricing H-1B visa holders and other employment-based immigrants out of the U.S. labor market.
The DOL published a similar final rule to amend H-1B wage obligations on Jan. 14, 2021, just days before the end of Trump’s presidency. The rule was scheduled to take effect on March 15, 2021 — during H-1B cap registration. After taking office on Jan. 20, 2021, the Biden administration delayed the final rule’s effective date and issued a public request for information to determine how to best approach the issue. A court vacated the Trump-era rule, and the Biden administration has not taken further action on the issue.
While it is unlikely that the same wage rule would be issued in a second Trump administration, as it was vacated in court, we expect that a second Trump administration would resume efforts to increase wage obligations by a significant margin.
The Department of Homeland Security under the Trump administration also issued a second rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” on Oct. 8, 2020 — the same day DOL issued the wage rule. This IFR had a 60-day delayed effective date, and therefore did not ignite the kind of chaos we saw following the wage rule. Although this rule was also blocked in court, the Trump administration still attempted to issue a final rule by posting the text of it online a week before President Biden’s inauguration.
Had the rule gone into effect, it would have narrowed eligibility for the H-1B visa, including by providing that a position must always require a degree in a directly related specific specialty to qualify as a “specialty occupation.” In addition, the rule would have heightened evidentiary requirements for positions involving third-party placements and shortened the validity period for those cases.
Finalized in January 2021, the H-1B wage-prioritization regulation would have reshaped the H-1B cap selection process and limited opportunities for early career professionals. The rule was scheduled to take effect March 9, 2021, just before cap registration, but the Biden administration issued a notice on Feb. 8 delaying the effective date. Although it never took effect, the U.S. Citizenship and Immigration Services regulation would have replaced the annual H-1B lottery with a new selection process that prioritized H-1B registrations based on the wage level the petitioning employer would pay the beneficiary.
The proposed prioritization system would likely have eliminated eligibility for Level 1 and many Level 2 positions. Newly graduated international students would have been most impacted, as they are more likely to be hired into entry-level positions that offer Level 1 and 2 wages. In September 2021, a federal court vacated the rule and the Biden administration later withdrew it. Though President Biden did signal support for a wage-based allocation process, USCIS did not take any action to pursue this policy during his administration.
The transition between the Trump and Biden administrations brought about great uncertainty for employers because it was not clear if any of Trump’s rules were going to be in place for the 2021 H-1B cap season, for which companies had already spent months planning. We watched, in real time, as all three Trump rules went through litigation, were revisited by the Biden administration and were ultimately vacated in court.
Along with the restrictive H-1B policies Trump attempted during his first term, another change we would expect to see again in a potential second term is the rescission of the longstanding “deference policy.”
In October 2017, USCIS issued a policy memorandum that took effect immediately, directing USCIS officers to no longer give deference to prior agency determinations in extension of status cases. USCIS officers began reviewing extension cases as if they were completely new petitions. As a result, the agency issued requests for evidence and denials at higher rates than ever before. This led to a great deal of confusion and anxiety among foreign national employees and created challenges and business disruptions for employers.
The Biden administration reinstated the deference policy in April 2021 via policy memorandum. In October 2023, USCIS proposed to codify the policy into the regulations as part of the H-1B modernization proposal, which is currently moving through the regulatory process. Though the Biden administration has moved to make the policy permanent, it is currently only a policy memorandum. If the policy is not codified before Biden leaves office, a second Trump administration would be able to once again rescind the deference policy by simply issuing a policy memorandum — and create the same unpredictable, inconsistent adjudication environment we saw during the first Trump term.
If Trump is elected for a second term, it is highly likely that the administration would pursue similar policies. Here are three ways you can be prepared for that potential scenario:
BAL’s Government Strategies team is well-versed in these regulations and can consult your organization on the best path forward. Schedule a consultation with our team to get started.
This article was originally published on Law360.com.
In this week’s episode, BAL’s Eileen Lohmann discusses immigration regulations former President Trump had in the pipeline before the 2020 election and what they could mean for a potential second term. Plus, the immigrant impact on Team USA and the latest U.S. and global immigration news.
Explore more episodes of the BAL Immigration Report podcast, available on Apple, Spotify and the BAL news site.
This podcast has been provided by the BAL U.S. Practice Group.
Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
The Supreme Court rules in a visa denial case involving a U.S. citizen and her non-immigrant spouse.
An American Immigration Council report reveals increasing reliance on H-2A workers.
BAL’s Steven Plastrik breaks down the results from our election survey.
Get these insights and more in the latest episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
It is no exaggeration to say that the 2024 presidential election may have dramatic consequences on U.S. immigration.
The Republican candidate, former President Donald Trump, and the Democratic nominee, Vice President Kamala Harris, differ not only in their rhetoric about immigration but also in the policies their administrations pursued in their respective terms in office. While unauthorized immigration and the border dominate the headlines, business immigration would bear the impact of a change in administrations as well.
So, what do employers think?
BAL recently surveyed business leaders about their immigration programs, how they plan to support their workforce and how they are preparing for the election. In all, we received 111 responses. Answers varied, but a few trends emerged.
Nearly 6 in 10 respondents (59%) said their organization found it “somewhat” or “much” easier to meet foreign talent needs in the last four years. Another 23% said there was not much change for their organization, while 18% said it was “much harder” or “somewhat harder.”
We also asked about the potential changes the administration should prioritize for the remainder of Biden’s term, allowing respondents to pick more than one answer.
Other priorities for employers included reducing Department of Labor wait times, stabilizing Deferred Action for Childhood Arrivals (DACA) and securing the U.S.-Mexico border.
While the election has the potential to disrupt immigration policies and procedures, employers remain committed to their foreign national employees.
Two-thirds of respondents (67%) said they “are doing as much as (they) can” with existing resources to protect the work status of foreign national employees prior to the election. An additional 15% said they are expanding resources.
Respondents were split regarding when they will start planning for possible changes, with roughly half saying they have already begun doing so or will this summer and the other half saying they will wait until the fall or after the election.
A plurality of survey respondents said they had not yet begun communicating with their organization’s leadership or foreign national employees but that they plan to do so.
It is understandable that many employers said they don’t know where to start when communicating about the election. The uncertainty of the outcome makes preparation and communication difficult.
There are steps employers can take now, however, including encouraging foreign national employees to move up their timelines for travel and visa renewals; prioritizing certain petition filings to take advantage of current policies; and reviewing employee populations and company policies to help identify the likely effects of a potential change in administration.
BAL is able to assist in these endeavors and will continue providing additional information and resources as we move through election season.
BAL’s election survey was open to the public May 14 through June 5. There was a total of 111 survey respondents, with immigration program sizes ranging from fewer than 10 petitions to more than 500 petitions filed per year. Respondents included a mix of in-house attorneys, immigration program managers and human resources and global mobility professionals, among others.
Respondents represented more than 20 industries, including:
Respondents represent businesses with small, mid-size and large immigration programs.
Steve Plastrik is a senior associate on BAL’s Government Strategies team. If you are interested in speaking with a BAL attorney about how to prepare for any election outcome, contact us. To learn more about BAL Community, visit https://community.bal.com.
U.S. business leaders tell BAL it has become easier to meet foreign talent needs.
A new report examines the human and economic costs of ending DACA.
And Lynden Melmed, the head of BAL’s government strategies team, joins us to discuss one organization’s vision for a second Trump administration.
Get this news and more in the latest episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and the BAL news site.
This month, Kelli Duehning, a BAL partner and head of the San Francisco office, joined WERC President and CEO Anupam Singhal for a frank discussion about corporate immigration issues in this unique election year, what the implications are for employers of foreign nationals and what they can do to prepare for any election outcome.
Watch this special segment of WERC’s The One Take here.
Read the transcript below.
Anupam Singhal: All right, welcome to The One Take, Kelli. It’s great to have you here today with the election season, might I say, in full swing and changes in global mobility resulting from that on the horizon. I think we’re in for a really fascinating conversation, so let’s get right into it.
Kelli Duehning: Great, thank you. Well, it’s a pleasure to be here, and I do look forward to diving into these certainly important topics.
Singhal: Awesome. Well, Kelli, you know this is obviously a unique election year with both presidential candidates having previously served one term. What implications do you think we can expect to have, depending on the election results, on U.S. immigration policy?
Duehning: This election is definitely very unique, and it’s going to be a unique experience in that we’re going to be able to make some predictions based upon previous actions and also plan ahead where possible. So, like most cases, if an incumbent wins the reelection — in this case, President Biden — we can expect more of the same of what he’s been doing, with maybe a higher intensity since this would be his final term.
But this time, if the challenger takes the election — in this case, President Trump — we can also anticipate what we expect: probably a more amplified version of what he did during his first term. Those of us who have been involved in immigration programs through both administrations have already seen how the opposing policies have impacted their programs and can be more proactive in how to respond as an organization.
Singhal: Just picking on that for a second, I think you’re sort of suggesting it but not quite saying it, so I’ll say it: Immigration is obviously a very significant concern. It seems like, in fact, it’s a top concern for voters in the U.S. And the two candidates seem to have polar opposite approaches, at least the rhetoric as such. Given that and what you were just saying at the end of your comments there, how are you advising clients and businesses to prepare their immigration programs for whatever the outcome ends up being?
Duehning: Right. So, you know the first term of the Biden administration has pushed forward an ambitious regulatory agenda. For example, he’s been piloting the foreign nationals, allowing them to renew their visas in the U.S., which hasn’t been available since 9/11. He’s been expanding pathways for foreign workers to qualify, let’s say, for national interest waivers and adding to the STEM lists. They’ve been putting the fast track on green card processes, and he’s also looking to overhaul the H-1B lottery system to reduce fraud. So for example, if President Biden wins a second term, we can expect more of that same stuff — an environment where the administration is very receptive to feedback and ideas from the private sector and quite frequently actively seeking, actively looking for ways to modernize immigration pathways to ensure the immigration system is functioning.
I also note, though, that while we can rely on President Biden’s administration to continue to move forward in that realm, it is important that you know the outcome of the congressional elections could certainly affect the oversight or either promote or hinder that that agenda as well.
Singhal: Right. It’s interesting, I was at a forum five weeks ago, and there were some immigration updates or just regulatory updates being provided by someone on the Hill. And the bottom line was that there’s regulatory logjam, basically because of just where Congress is and how divided things are in D.C. And you’re right that depending on how the election goes, it may not just come down to the presidential election itself and who ends up in that office but what the rest of Congress looks like. Interesting.
So what can businesses expect to be facing if President Trump ends up coming into office and you know, I’m trying to remember, what the hallmarks of his immigration policy were four years ago. Based on current rhetoric and outlined platform, etc., what are you all seeing and what are you advising clients to keep in mind?
Duehning: I think that’s great, and I think you really led it off earlier by saying certainly opposing views in how they want to address immigration. So in Trump’s first term, we saw a lot of restrictions and barriers put in place to really limit both illegal and legal immigration. The focus was more on promoting that local workforce, making sure businesses are hiring with U.S. workers versus foreign nationals. So for example, we saw a lot of the broad travel bans. We saw that the Trump administration tried to narrow those eligibility requirements for H-1B applicants, driving up costs for recruiting and retaining foreign talent, limiting international students’ abilities not only to stay but also to work after they’ve received their U.S. degrees. So if Trump wins a second term, we really do anticipate even more restrictions and policies to reduce immigration, mostly probably driven by executive orders — again, depending upon how the congressional elections go — but probably driven by those executive orders, certainly starting with reversing a lot of the Biden policies that were passed by executive order.
We can anticipate that the Trump administration will certainly implement the majority of recommendations by the Heritage Foundation. If you’ve not read that report, I really encourage you all to read the Heritage Foundation’s immigration report. What it does is it’s requesting a lot of different things, but certainly dramatically raising filing fees and ending a lot of the quasi status-type programs like DACA and all the parole programs that the Biden administration had started. And the reason why we say that you should be looking at that Heritage Foundation road map and then plan based upon that road map is that during his first term, he took the Heritage Foundation recommendations and implemented over 60% of them. So it’s a really good way, I think, to kind of anticipate where he’s going to be going.
Singhal: You said the Heritage Foundation?
Duehning: Yeah, the Heritage Foundation. We can certainly share that with folks. I know in ERC and the Global Immigration Forum, we’re certainly looking at that and are happy to be sharing out a lot of that information with folks in the various Mobility Minutes and other areas where we can share that information.
Singhal: I absolutely appreciate it. I think that would be very valuable, and so I encourage folks to try and get ahold of the Heritage Foundation — what do you call it? The Heritage Foundation —?
Duehning: Their immigration road map and their suggestions to the Trump administration.
Singhal: Correct — okay, got it. I need to get ahold of that for myself and read that front to back — that’ll be bedtime reading for me today. Hopefully it’ll put me to sleep and not wild me out. We’ll see.
Duehning: It’s interesting because this isn’t just an election year in the U.S., right? Right now we have over, I think it’s like over 60 elections worldwide. So how do you think those might also impact the global mobility, the rest of the world’s immigration or global mobility programs?
Singhal: I think it’s closer to like two-thirds of the world’s population is going through an election this year, which is nuts. So it’s obviously the U.S. The U.K., which folks might have seen in the news, the prime minister, he’s asked for an early — effectively a referendum on his administration set for July 4 elections there. India just went through and is still in the process of wrapping up its elections. The European Union, I think Mexico, South Africa and I think a number of other countries as well.
I think what it seems, what’s sort of undeniable is we seem to be in this phase where populism is quite pronounced, even in very unexpected places. Nationalism and populism is quite strong, and so I think the expectation generally is that will continue — there’s no signs of that changing anytime soon, at least in the major economies. As a result, I think what I’ve heard and seen based on that, it just feels like things are going to be more complicated for global mobility, cross-border mobility, to happen compared to the way it was before.
So just more complexity, more cost, more friction and essentially, in some ways, in some strange ways, it actually makes the need for this industry that much more pronounced and everyone in this industry that much more necessary. Because the expertise of folks like yourselves and others in different areas, whatever those areas might be — you know, the expertise and your efficiency in being able to assist folks being able to cross those borders in whatever context it might be — tax, immigration or even just moving and housing and so on — is going to be super important to making sure that people get productive. They can get to where they need to get to, and businesses can get them there in a timely fashion and then actually make them productive. Great callout — it’s definitely very interesting times, not dull by any means, let’s put it that way.
So let me ask about businesses: You threw out a number of things that made sense. DACA doesn’t quite relate exactly to businesses — I mean, it’s something that a lot of people obviously care about for one reason or another, whatever side of the fence you might be on. But things, like what you were talking about green cards, perhaps to some extent H-1Bs and so on — maybe if you can spend a couple of minutes expanding on what are some of the things that might be contrasting on two sides around some of the key policy areas that will impact businesses and their ability to attract or acquire talent from wherever they might want to.
Duehning: Yeah, I think that’s really the important issue: What can businesses do now? How can they protect their foreign national population, retain that talent? We’re certainly recommending that businesses start preparing their foreign national employees and leadership teams immediately. I think that’s why it’s so important that we’re having this conversation — it’s really going to be important for them to start, as you were saying, as borders may be more difficult to move to and from — it’s really starting to identify those work groups that are going to need to be ready to be prepared for these changes. So identifying people within your organization who can be on the know and on the go with these changes so that they can relay these real-time updates to their impacted employees and be able to establish that plan of action.
And that’s really right now — I mean, you know, a lot of us should be in that planning phase at this point, and knowing who you should be prioritizing, who needs that protection within your employee population. So like we’ve been telling folks, what are your at-risk categories? To your point: If it’s going to be difficult to move to this country or come to the United States, but they’re critical to be here, what is it that you need to do now to make sure that they’ve got that long-term protection? Are there certain nationalities that need additional protection? For example, here in the United States we know that there’s going to be certain travel bans from certain countries most likely if there is a Trump administration — so how are you going to protect those folks? What do you need to do to make sure that they have that long-term protection so that you can retain them here or get them to the country that they need to go to so that they can then also have that long-term protection?
Are there certain business interests that your that your company has? What if you’re starting a new project or you’re going to be launching a new project and there’s certain employees that are critical to that launch or critical to that development or ongoing development of that new product? So are those folks then looking at that and making sure that they need to be where they need to be?
So, by the end of the summer, if you’re not in that planning phase, you should be in that planning phase. So that by the end of the summer, your foreign national employees should be in a secure, durable status, whether that’s in the United States or whether it’s in the country that you need to get them to be in so that they can remain there long-term. So before the election, thinking about do they need to have their visas extended? If you haven’t already filed for green cards, you need to start doing that now because we know how long that process can take, especially here in the United States. By January we’re going to be in a reactionary environment, especially here in the United States. I would imagine in some of the other countries as well — as you mentioned, U.K., India, Mexico. If you’re waiting until after the election, it’s going to be most likely too late in order to get those folks to that area, or the wait times are going to be so long because now all of us are going to be jumping to make sure we’re getting those employees protected.
So really start sitting down, thinking about what that looks like now. Urge your employees to frontload any family travel, extensions, visa renewals this year so that you can kind of sit back and relax a little bit and only deal with the crises that you need to, depending upon how the elections turn out.
Singhal: Wow, that was a lot. Actually, what you made me do the math on and realize as you were talking was we’re less than six months away from the elections. Wow, oh my god.
Okay, so the key thing there that you said was for folks, our audience, if you aren’t already in the planning phase, get on it now. You don’t have time to lose — there’s absolutely no good that’s going to come from waiting to see what comes of it. Start planning now and start thinking through what might be some of the actions you need to take to be ready for whatever the outcome might be.
You and I didn’t discuss this previously ahead of this conversation, but I wonder if you might be able to provide any update and/or perspective on this — and totally fine if not — but the State Department launched the H-1B visa renewal pilot program after many years of everyone asking for it. I know WERC was very active in advocating for it, and you as part of the Immigration Policy Forum did a lot of work in that regard as well. I was recently, I think it was at the BAM meeting, was sharing the stage with a visa analyst from the State Department, and she was talking about that they’ve gotten feedback, they’ve gone through the feedback cycle, they’re evaluating the feedback. Is there any update on when they’re going to expand that program? Because as I understood it, they started with four countries and that’s where it’s been at so far.
Duehning: That’s a really great question. So yes. First off, all of the responses back they’ve said have been super helpful — they it was by all accounts very successful. They plan to keep it and they do want to expand it.
Obviously, they’re still building up their team. So I think it’s kind of a twofold, where they are building up their team so that they can sort of open it up to all categories — they don’t want to continue to limit it, they do want to be able to open up to several categories — and basically anybody who’s eligible to meet that renewal process. But in the same terms, they need to build up their team. So I think from what I was told is they’re in that process of building up that team, and then based upon that capacity, they’re looking at how they can continue to build out.
What they really do is they are really just running — it’s a data numbers game, right? They don’t want it to be so flooded that it becomes a bad experience for everybody, so they’re really looking at it from that strategic angle of how can they increase based upon the staffing levels that they’re at so that it continues to be a quick, efficient way for people to get that visa renewal, but it doesn’t flood them so much that then it becomes a bad experience. So I think that’s what we’re looking for.
They’ve not been very specific in the discussions that I’ve had with them about exactly when they plan, but they do plan to be looking — from my understanding — they were looking at this summer or early fall in terms of continuing to expand and looking at what does that look like and what capacity do they have. Again, understanding all of this could go away under a Trump administration, so I think they really want to be able to build the program so that it’s more difficult to take away than to end it.
Singhal: That was going to be my follow-up question on that. So for anyone that’s not familiar with this, what Kelli and I were just talking about and what Kelli was providing an update on was essentially this pilot program launched by the State Department that allows for — well, before the launch of the pilot program, essentially if you have an H-1B that was expiring and you needed to get it renewed, you would actually have to leave the country and wait outside until it was renewed to come back in, which is obviously very disruptive for businesses that employ folks on H-1B visas. And so this pilot program for a select group of countries — or nationals from a select group of countries that meet certain criteria — allows them to file for renewal without having to leave the country and go through that disruptive process. So that that was what we were just talking about. Thank you, Kelli, for weighing in on that.
So, just to be sure, you said under a Trump administration that could actually disappear potentially?
Duehning: It could, yep, exactly — because that would definitely be something that, again, even though it’s legal immigration and even though it’s people that are already here, that administration as we saw in his first term would certainly be looking at ways to slow that process down or shut the process down altogether.
So that’s really what they’re looking at is, they know they can’t obviously completely shut down the U.S. immigration program, but they are looking for ways that it just takes it a lot longer for people to actually either get the visa, renew their visas, be able to continue to work in the United States. And so we would certainly expect something like this to either put be put on hold or just go away all together.
Singhal: All right, well, not a not a fun thought for anyone who has employees and folks that are on H-1Bs that are coming up for renewal. Maybe try and accelerate getting them into the renewal process or do what you need to based on the earlier suggestion from Kelli of don’t wait, get planning now and acting as soon as you can, given the uncertainty.
Kelli, I wanted to thank you very much for your time — these were great updates. Thank you for sharing these. I obviously always love talking to you — your wealth of knowledge and your background is fantastic and so it’s always fun, and I’m sure I’ll talk to you another time soon.
This is obviously important for me — the key takeaway is essentially: Folks should really stay informed on the differences in immigration policy and what impact that might have on what comes into effect, depending on the result of the U.S. elections later this year, the presidential elections. And then start planning and start acting on things that make sense and would be important for your business rather than wait and be in a reactive mode afterwards.
So thank you again, Kelli. I appreciate you taking the time and look forward to seeing you very soon.
Duehning: Great, thank you so much! It was wonderful discussing these, and as you said, I know we’ll continue the conversation, and I’m happy to be a part of it in making sure everybody feels prepared and ready. We all have to work together as a team on this, so looking forward to that.
Singhal: I very much appreciate, on behalf of WERC and the industry, appreciate your personal efforts as part of the Immigration Policy Forum and BAL’s support of WERC. So thank you for that! Have a good one. Bye!