Navigating the Future of H-1B, L-1 and O-1 Visas

As the new Trump administration takes shape, tech companies and foreign workers are keenly observing potential changes to the H-1B visa program and other related tech visas. The administration is expected to appease its opposing stakeholders by maintaining strong relationships with the tech industry while also addressing concerns from those advocating for stricter immigration policies.

H-1B and L-1 Visas: A Balancing Act

While some factions within the administration may push for a reduction in high-skilled immigration, the administration’s close ties with tech companies suggests it will likely maintain current levels of H-1B and L-1 visa issuances. The tech industry heavily relies on these visas, and any drastic reduction could disrupt business operations and innovation. However, procedural changes that we saw in the previous administration, as well as new ones, might be introduced to indirectly limit access, such as increased scrutiny during adjudications, slower processing times, increased requests for evidence, higher denial rates, and more frequent site visits.

A particular focus is expected on third-party placement firms and staffing companies, which have been accused of misusing the H-1B program. Companies that are in the outsourcing/staffing industry may face heightened scrutiny and additional requirements, especially in terms of documenting third-party worksite placements.

Buy American, Hire American: Implications and Expectations

The anticipated “Buy American, Hire American” executive order could lead to reviews of companies using large numbers of H-1B visas to determine if they are prioritizing foreign workers over U.S. citizens. This may also involve increased activity from the Department of Justice’s Immigrant and Employee Rights Section (IER), which scrutinizes whether foreign nationals are being unfairly preferred in hiring.

Geopolitical Considerations and Security Checks

The administration might impose stricter limitations on H-1B visa holders from countries perceived as unfriendly, such as China and those countries that have been designated as state sponsors of terrorism. Enhanced security and administrative checks could lead to delays for nationals from these countries, reflecting broader geopolitical concerns. The administration could also bring back its Travel Bans via executive orders, as it did previously.

Potential Revisions to Existing Policies

There is speculation about reversing USCIS’s deference policy, which has allowed USCIS adjudicators to rely on prior approvals involving the same parties and facts rather that adjudicating every visa petition from scratch. While the recent H-1B modernization rule codifies the deference policy, the administration could issue directives requiring case-by-case reviews, potentially complicating and slowing the process for employers and applicants.

Additionally, work authorization for some spouses of tech workers may disappear. The Trump administration proposed eliminating the H-4 EAD in 2021 and it may try to do this again. There have been no similar attempts at, or discussions around, rescinding L-2 work authorization.

Optional Practical Training (OPT) and STEM OPT

Previous attempts by the Trump administration to limit OPT and STEM OPT were met with resistance from the tech industry and educational institutions. Further restrictions on these programs seem unlikely in the short term because any changes would likely face significant pushback due to their importance to tech companies and universities.

Prevailing Wage and Union Advocacy

Efforts to increase prevailing wages for H-1B workers may gain traction, with heightened scrutiny on companies accused of undercutting wages through foreign hires. The incoming head of the Department of Labor could advocate for policies that favor higher prevailing wages and address union concerns.

Conclusion: Navigating Uncertainty

While the new administration may introduce challenges for high-skilled immigration, the business community’s pushback and the economic benefits of these programs could help prevent implementation of any drastic measures. Companies and foreign workers should stay informed and prepare for potential procedural changes.