The second Trump administration has entered its fifth month and, unsurprisingly, travel restrictions, immigration enforcement, border security, and the removal of those who are undocumented in the U.S. have been its priorities. In addition, the administration's focus has centered upon curtailing refugee benefits (except Afrikaners from South Africa), asylum seekers, and individuals pursuing Temporary Protect Status (TPS) from certain countries. Likewise, there have been recent calls by certain lawmakers to restrict the H-1B category and/or revisit H-1B wage issues.1 Although the administration has not (thus far) sought to directly limit the H-1B program, U.S. employers should prepare for potential restrictions and/or changes in the future under this second Trump administration. This article will examine some of the actions of the first Trump administration as it relates to restricting (or attempting to restrict) the H-1B category in order to understand the H-1B program objectives of a second Trump administration.
The First Trump Administration and efforts to limit the H-1B program
The first Trump administration (2017 to 2021) sought to limit the issuance of H-1B visas through a multifaceted set of actions. For example, in April 2017, President Trump issued an executive order entitled, 'Buy American, Hire American' that increased immigration enforcement activities and scrutiny of those applying for U.S. immigration benefits.2 Trump also eliminated a long-standing USCIS policy of deferring to prior adjudications, which had resulted in the approval of visa petitions for an immigration benefit, including H-1B petitions. This meant that U.S. employers that filed H-1B petitions to extend the stay of a foreign national had to go back to 'square one' and re-establish the merits of the original H-1B petition and/or eligibility for the H-1B benefit, even if there was little change in the H-1B employment. H-1B extension petitions had to be well documented with respect to evidence establishing the same position was a specialty occupation. In addition, if the H-1B worker was to be placed at a third-party work location, U.S. employers had to provide not only service agreements between them and their customer, but statements of work and a letter from the customer attesting the work performed by the H-1B worker was performed under the control and supervision of the H-1B employer and that there was work available for the H-1B worker for the full validity period requested on the H-1B petition.
In addition, the Trump administration lowered the education requirements for certain occupational categories in the government's Occupational Outlook Network (O*NET), which resulted in occupations that had previously qualified as a 'specialty occupation' to come under question as to whether they would still qualify. The previous Trump Administration also proposed to change how prevailing wages were to be calculated. This would have resulted in significantly higher wages to be paid by U.S. employers to H-1B worker. However, this was challenged in federal court, and the first Trump administration ended before the administration could move forward with restructuring the H-1B wage level system.
These executive orders and guidance that shifted the USCIS toward increased scrutiny of H-1B petitions made it more challenging for U.S. employers. It resulted in an increase in Requests for Evidence (RFE), Notices of Intent to Deny (NOID) and denial notices issued by USCIS with respect to both H-1B petitions and extension petitions. U.S. employers experienced increased costs for processing required responses with respect to the increase in RFEs and NOIDs issued, as well as faced disruptions to their businesses. Further, given the increase in RFEs, NOIDs, and denials, there was greater burden placed on the human resource staff or internal immigration team of H-1B employers to amass sufficient documentation to avoid an RFE or NOID and to ensure H-1B petition approval.
The Biden Administration and the H-1B Modernization Rule
The Biden administration rolled back many of the restrictions imposed by the previous Trump administration (or re-instated some of the more liberal policies in place prior to the first Trump administration, such as a policy to give deference to prior adjudicated petitions), as it relates to the H-1B program. The Biden administration also implemented the H-1B Modernization Rule. This rule helped to clarify and/or codify certain aspects of the H-1B category that had been lacking in order to provide U.S. employers and foreign nationals with more clarity. It also imposed some trougher requirements but made the H-1B category feasible for foreign national entrepreneurs. Here are some of the highlights of the rule:
Specialty Occupation Language: The rule states that the government is retaining the "directly related" requirement in the definition of the term "specialty occupation" and is adding language clarifying that the term "directly related" means there is a logical connection between the degree or its equivalent, and the duties for the H-1B position. The rule also states that while the specialty occupation definition clarifies that the position may allow for a range of qualifying degree fields, each field must be directly related to the duties of the position. It also clarifies that the specialty occupation position may accept a range of qualifying degree fields, provided all are directly related to the job duties. This will allow for greater flexibility in interdisciplinary fields such as STEM (Science, Technology, Engineering, and Mathematics), Artificial Intelligence (AI), and emerging high-skilled job positions such as those listed in the White House's critical and emerging technologies list.3 The burden is on the petitioner to explain how the degree(s) is/are directly related.
Master Service Agreements (MSAs), Statements of Work (SOW), Purchase Orders (PO), end customer letters, mid vendor letters and agreements, etc.:The H-1B Modernization Rule permits USCIS examiners to request MSAs, SOWs, POs, end customer letters, mid-vendor letters, etc., to determine if there is bona fide work for the H-1B beneficiary.The H-1B Modernization Rule basically codifies USCIS' longstanding policy. As with the previous Trump Administration, it is possible the current Trump Administration may require extensive documentation evidencing that the U.S. employer has bona fide work for the H-1B beneficiary. To try to avoid the issuance of an RFE, U.S. employers may want to make sure their Master Service Agreements (MSAs), Statements of Work (SOW), Purchase Orders (PO), etc., are up to date, so that these documents may be submitted with the initial H-1B petition filing. (Note: U.S. employers are not required to provide all pages of these types of documents. Portions of these documents may be redacted and/or only certain pages of these documents provided to USCIS.) In some instances, as with the previous Trump Administration, in order to show the USCIS that the employer has sufficient work for the H-1B beneficiary, an MSA, SOW, PO, and letter from the end customer describing the work to be performed may be all that is needed for the H-1B petition to be approved.
Degree Requirements of Third-Party Customer:Under the H-1B Modernization Rule, if an H-1B worker is to be placed at a third-party work location (customer work location) and a staffing scenario exists, the H-1B Modernization Rule requires USCIS examiners to consider only the degree requirement of the third-party customer when determining whether the position qualifies as a specialty occupation. H-1B employers that place H-1B workers at third-party customer locations may want to confirm with their customers what degree types and/or degree fields are required for certain positions at the H-1B work location. Customers may be required to provide letters to affirm the degree type and/or degree field required to perform the job duties for H-1B positions in some cases. H-1B employers may want to obtain such letters from their customers ahead of time and include these letters in H-1B petitions to avoid the issuance of a Request for Evidence (RFE). (Note: It is possible USCIS may review employment ads of customers and the H-1B employer for similar positions to determine if a degree is normally required for the H-1B position the foreign national will work in at the third-party customer's facility. May want to review employment ads of third-party customers to determine what customers have required in the way of a degree type and/or degree field in the past for H-1B positions, and/or similar positions.)
Bona Fide Employment: The final rule clarifies the proposed rule that requires employers to establish non-speculative employment for H-1B workers at the time of filing. The final rule replaces "non-speculative employment" with "bona fide employment" for greater clarity.
Amended H-1B Petitions: The government also implemented a rule to clarify when an amended or new H-1B petition must be filed due to a change in an H-1B worker's place of employment. The rule codifies the Matter of Simeio Solutions decision and current USCIS guidance on when U.S. employers are required to file an amended H-1B petition when there is a change in work location.
H-1B Beneficiary-Owners: The new rule allows foreign nationals with controlling interests in a business to be eligible for the H-1B category. When this occurs, the government imposes additional requirements in order to qualify. A controlling interest is when the beneficiary owns more than 50% of the business and has a majority voting rights in the petitioning entity. The conditions that the government has imposed would not apply if the H-1B beneficiary does not own a "controlling interest" in the petitioning entity. The conditions that will be imposed when the beneficiary has a "controlling interest" will be the following: The beneficiary may perform duties that are directly related to owning and directing the petitioner's business as long as the beneficiary will perform specialty occupation duties authorized under the petition a majority of the time. Note: A "majority of the time" means the beneficiary will perform specialty occupation duties more than 50% of the time. The rule does not preclude a foreign national who has a controlling interest in the petitioner to have a concurrent H-1B petition filed on his/her behalf with another entity(s) and the foreign national may have a "controlling interest" in these entities as well, but the "majority of time" standard must still be met. Also, the non-specialty occupation duties must be directly related to owning and directing the petitioner's business.
Project 2025
The Heritage Foundation's policy framework, Project 2025, advocates for restrictions that are similar to those of the first Trump Administration.4 The document details a legislative agenda that would create a "merit-based immigration system that rewards high-skilled aliens." Project 2025 proposes that the H-1B program be transformed into "an elite mechanism exclusively to bring in the 'best and brightest' at the highest wages while simultaneously ensuring that U.S. workers are not being disadvantaged by the program."5
The Second Trump Administration
By considering the actions of the first Trump administration, we can surmise what may be in store for H-1B employers. As of this writing, the second Trump administration has not issued any executive actions or initiated any notice of proposed rulemaking that are specific to the H-1B category. However, it is possible that the second Trump administration may make efforts to do the following in the future with respect to the H-1B category:
- Raise prevailing wages: The second Trump administration may attempt to resume where it left off with respect to developing a new set of formulas for calculating wage levels. For example, under the first Trump administration, it was proposed that a Level 1 (entry) level wage be set at the 45th percentile of industry wages (instead of the current 17th percentile). If this were to occur, this would significantly increase the required wages to be paid to H-1B workers. In addition, back in 2014, lawmakers had proposed legislation that prohibited dependent H-1B employers from using a Level 1 wage in their H-1B petition filings. It is possible that similar legislation may be proposed by lawmakers in the future.
- Elimination or suspension of the H-1B domestic visa renewal program. From January through April of 2024, the Department of State (DOS) introduced a domestic visa renewal pilot program that allowed foreign nationals with a previously issued H-1B visa to renew their visa in the U.S. if they met certain criteria. Based on information provided by DOS, there are plans to offer this service in the immediate future.
- Increase in USCIS filing fees. In a move that was widely viewed as being designed to curtail use of the immigrant and non-immigrant programs and ultimately blocked by the courts, Trump attempted to impose new filing fees in his previous term that would have increased the cost of most visas and other USCIS services exponentially. Given that the Project 2025 document emphasized the imposition of additional fees on foreign nationals in order to support USCIS operations, it is anticipated that a second Trump administration may attempt to increase H-1B filing fees in the future.
- Increase in H-1B site visits: It is anticipated that there will be an emphasis on H-1B compliance enforcement. In Trump's first term, there were many DHS site visits to H-1B employer offices and attempts to rescind work authorization for H-4 spouses. In 2025, the government may increase random site inspections to uncover fraud or misuse of the H-1B program. It is important that U.S. employers ensure the work location, duties, and salary are accurate on H-1B petition filings and amended H-1B petitions are filed when there are changes in the terms of employment.
- Re-instate the2018 USCIS policy guidance, which granted officers discretion to deny petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny NOIR), for innocent mistakes: It is possible that a second Trump administration will implement a zero-tolerance policy and allow USCIS examiners to deny H-1B petitions without first issuing an RFE or NOID. As a result, U.S. employers would want to make sure the H-1B paperwork submitted to the USCIS is error free, complete, and accurate.
- Pause intake of H-1B petitions if processing backlogs become excessive. This has been proposed in the Project 2025 document. While it is assumed that this was an action taken in an immigrant visa petition context, it is possible a second Trump administration could try to impose such a restriction, at least for those H-1B petitions that a U.S. employer wishes to file through regular processing.
- Increase U.S. Department of Labor (DOL) Wage and Hour Division audits and/or investigations. The Trump administration is focused on enforcement and protecting the jobs and wages of U.S. workers. It is possible that there could be an increase in DOL Wage and Hour Division audits of H-1B public access files and/or wage information to make sure U.S. employers are paying the required wages to H-1B beneficiaries and to impose fines and penalties on U.S. employers that fail to comply with their H-1B wage obligations.
- Increase in the issuance of RFEs, NOIDs, Notices of Intent to Revoke (NOIR) and denial notices. In the first Trump administration, USCIS issued a high number of RFEs, NOIDs, NOIRs and denial notices in connection with the H-1B program. U.S. employers should be prepared for the same in the coming months, as the Trump administration shifts from border security and removal activities to employment-based benefit processing. U.S. employers may want to consider budgeting for any additional legal costs that may arise as a result increased issuance of RFEs, NOIDs, NOIRs, and denial notices.
- Shortened validity periods on H-1B petition approval notices. The first Trump administration had a practice of limiting the validity period of H-1B approval notices, if the U.S. employer was unable to show agreements with its customers that cover the full validity period requested in the H-1B petition. This resulted in U.S. employers having to file more H-1B extension petitions. U.S. employers may want to budget for this in the future, or work with their customers to obtain documentation that reflects services to be provided that extends well into the future.
- Limit the ability of U.S. employers from participating in the H-1B program, if its U.S. labor force does not comprise a certain number of U.S. workers. In 2014, lawmakers proposed a bill entitled, "Border Security, Economic Opportunity, and Immigration Modernization Act (S.B. 744), under this bill, H-1B employers (other than educational or research employers) that employ 50 or more worker in the U.S. would be banned from sponsoring H-1B nonimmigrants, if the U.S. employer has more than 75% of their workforce in the U.S. in H-1B status. It also had provisions to ban the ability of U.S. employers to sponsor H-1B nonimmigrants if the U.S. employer did not have less than 50% of their U.S. labor force in H-1B status.
- Adopt a strict policy to deny or reject H-1B petitions that are incomplete or not completed properly: The Project 2025 document proposed USCIS adopt a strict policy to deny or reject applications or petitions that are incomplete. USCIS has followed a strict policy in the past, and it is possible a strict policy could be adopted in the future with respect to H-1B petition filings. As a result, employers should ensure Form I-129 and supplement is thoroughly completed and that no spaces are left blank.
- Work with lawmakers to create legislation that would require mandatory recruitment to test the U.S. labor market before being eligible to sponsor a foreign national for the H-1B category, similar to the H-2B program: Lawmakers have introduced legislation in the past that required H-1B employers to advertise for the H-1B position on the Department of Labor (DOL)'s website for a 30-day period. It is possible that lawmakers could revisit this idea. Under the H-2B program, U.S. employers must obtain a Temporary Labor Certification (TLC) which verifies there are not enough qualified U.S. workers available to fill the H-2B position(s). It is possible that lawmakers may move in a direction to require something similar for the H-1B category.
- Require DOL LCA compliance audits and increase fines for LCA violations: Lawmakers have proposed legislation in the past that would have required DOL to conduct annual LCA compliance audits of each U.S. employer with more than 100 employees, if more than 15% of the employees are in H-1B status and required that those audits be made available for public inspection. It is possible that the Trump administration, working with Congress, may implement something similar. In addition, it is possible that the DOL could try to significantly increase fines for LCA violations in the future.
- Spearhead legislative efforts to eliminate the H-1B category and create a merit-based immigration system that rewards high-skilled workers: During the Trump administration's first term, it advocated for a merit-based immigration system as a major component of its efforts to move ahead with immigration reform. Lawmakers proposed a bill entitled, "Reforming American Immigration for a Strong Economy" (RAISE) act, which highlighted giving preference to foreign nationals who possess education and work experience that could benefit the U.S. economy, rather than foreign nationals currently eligible for immigration benefits based on family ties. The RAISE act proposed a points-based system, and points were to be awarded based on education, income, offer of U.S. employment, English language proficiency, investment in the U.S., etc. The second Trump administration could try to work with lawmakers and develop legislation that would eliminate the H-1B program and create a merit-based system.
When will the Trump administration and/or lawmakers focus their sights on the H-1B program?
In a March 2025 Politico article, Congressman Jim Jordan, an ally of Donald Trump, indicated Republicans would like to put forth an immigration bill to overhaul existing immigration laws, including the H-1B program, to increase the flow of immigrants into the U.S. with expertise in the sciences, technology, and engineering.6 Overhauling the H-1B program is one of the items that lawmakers will likely debate. As part of this debate, there is some indication that Democrats would argue to protect Dreamers (foreign nationals brought to the U.S. as children by their parents) and concede to Republicans new restrictions on the H-1B category. In addition, there is some bi-partisan support among both Democrats and Republicans to require employers to pay H-1B workers higher wages in order to protect U.S. labor.
Jordan has indicated that once lawmakers have passed the budget reconciliation bill (The One Big Beautiful Bill Act), lawmakers would likely turn their attention to some type of comprehensive immigration reform legislation and begin debate which would include changes to the H-1B program. It is anticipated that lawmakers may turn their focus on immigration reform legislation sometime at the end of 2025 or the beginning of 2026.
Conclusion
The Trump administration appears to be committed to immigration enforcement activities and protecting U.S. workers and wages. While the initial focus of the Trump administration in the first five (5) months has been on border security, the removal of those illegally in the U.S., and eliminating certain humanitarian programs, make no mistake, the Trump administration will soon turn its attention toward employment-based immigration reform. U.S. employers should be ready for likely changes to the H-1B program, which may include an increase in filing fees, RFEs, NOIDs, NOIRs, and denials, and budget accordingly. They may also want to review their labor force in the U.S. to make sure it has a healthy representation of U.S. labor. Further, U.S. employers may want to audit their H-1B public access files to ensure that documentation is in compliance with government regulations. In addition, U.S. employers who place workers at third party work locations may want to make sure that documentation is in place to show work available for H-1B workers for the full validity period of the period of employment requested in the H-1B petition, as well as appropriate wage levels are selected on the LCAs filed with the DOL in connection with H-1B petition filings. Taking these steps and monitoring legislative activities will help to prepare U.S. employers for the likely action that both lawmakers and the Trump administration plan to take in an effort to not only bring change to the H-1B program, but employment-based immigration as a whole in the U.S.
Footnotes
1 'Now do the H-1B visas': Trump ally says after US announces restrictions on Indian travel agents. Times of India, May 25, 2025: www.msn.com/en-in/news/world/now-do-the-h-1b-visas-trump-ally-says-after-us-announces-restrictions-on-indian-travel-agents/ar-AA1F97jh?ocid=BingNewsSerp
2 See USCIS, February 08, 2021: Buy American and Hire American: Putting American Workers First | USCIS
3 Fast Track Action Subcommittee on Critical and Emerging Technologies, National Science and Technology Council, Critical and Emerging Technologies List Update, February 2024: bidenwhitehouse.archives.gov/wp-content/uploads/2024/02/Critical-and-Emerging-Technologies-List-2024-Update.pdf
4 "Project 2025: The right-wing wish list for Trump's second term," BBC, February 13, 2025: www.bbc.com/news/articles/c977njnvq2do
5 Heritage Foundation, Project 2025: Mandate for Leadership, p. 150.
6 B. Bordelon and H. Fuchs, "Jordan lays out timeline for tackling high-skilled tech visas, immigration overhaul efforts." Politico, March 11, 2025: www.politico.com/live-updates/2025/03/11/congress/jordan-lays-out-timeline-for-tackling-high-skilled-tech-visas-immigration-overhaul-efforts-00225418
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