Will Tech Workers Have Trouble Getting H-1B Visas Due to Changes Under Trump?

Question

I’m a foreign student in the U.S., getting a B.A. in computer science. I had been hoping to apply for tech jobs that would qualify me for an H-1B visa after I graduate. But I keep hearing reports of new policies and orders coming out of the Trump administration, somehow “cracking down” on H-1B visas. I’m just trying to find work in an area where my services are needed. Will I now have trouble with this?

Answer

You are correct that the U.S. government has been issuing a lot of written materials about the H-1B specialty occupation visa for temporary workers. There was, for instance, a March 31, 2017 Policy Memorandum from U.S. Citizenship and Immigration Services (USCIS), rescinding a previous memo and discussing what credentials a programmer applying for an H-1B must have.

And there was Trump’s Executive Order of April 2017 entitled "Buy American and Hire American," which demanded “reforms to help ensure that H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries.”

The key thing to understand, however, is that no laws, regulations, or policies directly affecting H-1B workers have actually changed yet. The eligibility criteria for an H-1B visa are the same as they ever were—applicants must be coming to the U.S. temporarily to work for an employer in a specialty occupation for which that applicant has the appropriate training and background. (Indirect effects are another matter; Trump's many executive orders regarding heightened scrutiny for visa applicants might affect you and many other applicants, particularly those from countries the administration believes to present greater security risks.)

Both the policy memo and the executive order remind the people carrying out the law to uphold it, but they don’t actually address create any new standards or name any situations in which the law wasn’t being upheld already.

It’s possible that future changes are on the horizon, after the heads of the Departments of State, Justice, Labor, and Homeland Security comply with Trump’s order that they “suggest” reforms. However, we have no way of knowing what sorts of reforms this might result in.

Some have suggested that, to comply with Trump’s order that the agencies “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries,” the current lottery system will be done away with. Yet that system is simply a USCIS policy for randomly choosing which (among the inevitable overload of applications that arrive each year) it chooses for consideration, given the annual limit. To actually switch to a priority system based on skill or pay would be a major change, no doubt requiring Congress to amend the existing law.

And let’s not forget that in order to actually change anything about the basic H-1B law or implementation policy, either Congress or the federal agency in question would have to actually pass new laws or regulations—which normally requires long deliberation and (in the latter case) an opportunity for public comment.

As many experts have noted, the net result will be no immediate changes or impact on H-1Bs visa applicants or companies seeking to hire them.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
FEATURED LISTINGS FROM NOLO
Swipe to view more
NEED IMMIGRATION HELP ?

Talk to an Immigration attorney.

We've helped 85 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you