Donald Trump's second term as President will begin in January 2025. It is well known that the new administration plans to impose many new restrictions on immigration, including employment-based visas and the H-1B program in particular. What can you do now and in the coming months to prepare? This bulletin summarizes what changes we expect to see in the new administration, and what actions you can take immediately to stay ahead of the coming challenges.

Summary of Expected Changes

During Trump's second term in office, H-1B workers and IT consulting firms can anticipate significant restrictions on high-skilled immigration similar to those during his first term. Trump's past administration introduced several policies that made it challenging for employers to hire H-1B visa holders, such as increasing the visa denial rate, expanding site visits and investigations, and issuing Requests for Evidence (RFEs) that raised legal costs. Employers in the IT space will certainly see heightened scrutiny of H-1B applications, especially for jobs at client locations, as Trump previously attempted to redefine employer-employee relationships and limit third-party placements.

The Biden administration's pending "Modernizing H-1B Requirements" rule includes a provision that would once again require client letters in third-party placement situations. We expect that provision to become law in the coming weeks or months, whether under Biden or Trump. Also, analysts believe that the Trump administration may revise the H-1B regulations further to make them more restrictive, including by a) narrowing the criteria for specialty occupations and b) increasing prevailing wage requirements. This approach aligns with Trump's previous proposal from 2020 to revise the prevailing wage methodology to greatly increase required wages for H-1B visa holders. The IT consulting industry has been a target of USCIS for two decades, and denial rates for H-1B filers in that industry are expected to increase significantly.

Moreover, the Trump administration previously tried to terminate work authorization for H-4 spouses, a move that may resurface under a new Trump administration. These restrictions would add further challenges for families awaiting green cards, especially those from countries with lengthy backlogs, like India.

Despite recent campaign statements by Trump suggesting a more positive approach toward high-skilled immigration, these promises may not align with the hardline policies of his advisors, such as Stephen Miller. Miller has been selected to serve as deputy chief of staff for policy in the new administration. He is famous for his opposition to legal immigration, including the H-1B program. Miller previously authored a failed Congressional bill that would have prohibited F-1 students from applying for an H-1B for 10 years after graduation.

What You Can Do To Prepare

Here are a few steps that you can take in anticipation of changes to policy:

• File H-1B, H-4 and H-4 EAD extensions in the next 2 months.
• Extensions can normally be filed up to 6 months in advance of expiration. However, if there is any change in the job (i.e., even a $1 difference in salary), that is grounds to file an immediate amendment/extension. For now, USCIS is still required to adjudicate H-1B, H-4, and H-4 EAD applications filed together.
• For the upcoming H-1B cap season, employers should focus their recruitment more on F-1 students who already have client projects. We expect the new administration to propose a revision to the H-1B lottery giving preference to cases involving Level 3 or 4 wages, but it is unlikely that the change would be implemented by March 2025.
• Employers who do IT subcontracting should inform their up-line vendors that client letters will most likely be required for all H-1B contractors in the coming weeks/months.
• Spouses on H-4 EAD should apply under the H-1B cap in 2025, and again in subsequent years if they are not picked initially. In case the H-4 EAD program is eliminated, most likely current H-4 EADs would remain valid and USCIS would only stop approving new ones.
• In case of DHS site visits, H-1B employers should avoid answering any questions orally and should request questions in writing in order to allow for attorney review.

Given the intricacies and potential pitfalls of the H-1B program, it's paramount to stress the importance of hiring a competent immigration attorney. An experienced attorney not only guides you through each step but can also foresee and mitigate challenges. Investing in the right legal expertise can save both time and resources in the long run, as well as provide peace of mind despite government scrutiny.

Check this newsletter and our website at www.tewary.com for the latest updates.