The Trump Administration and H-1B Visas (So Far)

During his campaign, President Donald J. Trump made a number of comments about the H-1B visa program—the visa for highly-skilled workers. At different moments he was against the program, then in favor of tightening it up. In the early days of his administration, a rumored executive order concerning the H-1B program circulated, causing some alarm among different interest groups, but it has not been issued yet.

On March 31, the U.S. Citizenship and Immigration Services (USCIS) issued a new policy memo, providing the first concrete step toward reforming the H-1B program in the Trump administration. News of the policy guidance created a bit of a media sensation in India, with newspapers and television channels asking whether Indo-U.S. ties were heading for a break. My own view is that the March 31 USCIS memo does not represent a major disruption, and that it simply updates policy guidance nearly eighteen years old concerning eligibility of entry-level computer programmers with only a two-year degree. Indeed, India’s National Association of Software and Services Companies (NASSCOM) stated that it expected the policy would have “little impact” on its members.

There are a number of other issues that affect the H-1B program which have not been addressed in the new policy memo, but could be subject to change. Any major reform to the program would have to be done through legislation, as the U.S. Congress has responsibility for immigration in the United States. As my colleague Ted Alden explained this morning during our Facebook Live chat, the politics of immigration reform in the United States remain so complex that the likelihood of legislation successfully moving through Congress appears limited.

Still, there are ways that the program could be affected through regulation, such as the ability for spouses of H-1B visa holders to work in the United States, a change made by the Barack Obama administration. USCIS also announced in April that it would up the frequency of its site visits in an effort to crack down on visa fraud, and would be conducting spot-checks on actual wages paid to H-1B workers. Further, Ted also noted that the U.S. State Department has issued new guidelines on visa processing generally, which may have an impact on H-1B applicants as well through the possibility of greater scrutiny and/or longer wait times for interviews.

Amidst all this, it’s important to keep in mind that India’s challenge to the United States over fees on skilled worker visas is presently under review in the World Trade Organization. This is the first instance in the world in which immigration processes have been challenged under “the provisions of a trade agreement,” to quote Ted. It’s clear there will be much to watch for in the coming months on the trade and immigration front.

Take a look at our half-hour discussion for more details.

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