Foreign workers seeking U.S. jobs enjoyed near-guaranteed visa success in fiscal year 2024, with immigration authorities approving more than 97% of H1-B visa applications, as reported by the National Foundation for American Policy.

This was the second-highest approval rate in more than a decade. But the exceptionally high success rate could soon end if President-elect Donald Trump’s team revives his first administration’s restrictive immigration policies, according to immigration lawyers.

That, in turn, could significantly affect U.S. businesses and other institutions that rely on highly skilled foreign workers, especially those from India, they warn.

“I think it’s going to get harder, and it’s going to be more complicated to approve things,” said Sharvari Dalal-Dheini, senior director of government relations at the American Immigration Lawyers Association (AILA) and a former lawyer for U.S. Citizenship and Immigration Services (USCIS).

Companies exploit program, say critics

Created in 1990, the H-1B program lets U.S. employers hire foreign talent in specialized fields such as technology, engineering and health care, with 85,000 visas issued by lottery. Indian workers received more than 70% of the slots in recent years, followed by Chinese nationals.

The program has long been the subject of controversy. Proponents point to its role in allowing the U.S. to attract top foreign talent and fill critical jobs. A 2016 study by the National Foundation for American Policy found that nearly one-quarter of America’s billion-dollar startups had a founder who first came to the U.S. as an international student.

However, critics view the program as a weapon against American workers. Ira Mehlman of the Federation for American Immigration Reform (FAIR) pointed to Disney’s controversial move a decade ago to lay off hundreds of U.S. staff members, forcing them to train foreign replacements as a condition of their severance.

Though Disney denied any wrongdoing and beat subsequent lawsuits, the case became a rallying cry among anti-immigrant groups.

FAIR says U.S. companies exploit the system to hire cheaper foreign labour, driving down U.S. wages.

“There are plenty of tech workers available here in the United States, and that should be the first resort for these companies to go out there and hire people who are American citizens,” Mehlman, FAIR’s media director, said in an interview with VOA.

Mehlman said the program has strayed from its roots as a temporary foreign worker program, with foreign nationals using it as a backdoor to American citizenship.

“This should be a program that says you’re going to come here for a specified amount of time, the duration of your visa, and then you’re going to return home,” Mehlman said.

The criticism is shared by many congressional Republicans as well as Trump, who in 2016 campaigned to end what he called “a cheap labour program.”

That did not happen, but the first Trump administration moved swiftly against the program after Trump issued his Buy American, Hire American executive order within months of taking office. Immigration officials followed up with stricter degree and wage requirements for foreign workers.

Most of those rules were eventually blocked by courts. However, immigration officers found other ways to squeeze the program. They approved some visa requests for one year instead of three, rejected automatic extensions and ramped up worksite inspections. Visa applicants were hit with mounting demands for evidence to process their petitions, according to immigration lawyers.

The crackdown hit hard. New visa denials soared to 24% in 2018 and dropped to 21% in 2019 before easing to 13% in 2020. That marked a sharp departure from the Obama era, when fewer than 1 in 10 petitions were denied.

“What we did see that kind of worked effectively under the Trump administration was a gutting of the system,” said Dalal-Dheini, who worked as a special counsel at the USCIS during the first Trump administration.

Trump’s plan for visas uncertain
While changing rules and regulations are cumbersome and time-consuming, immigration lawyers warn about a likely return to the tactics the first Trump administration used to limit the number of visas issued to foreign workers.

Kathleen Campbell Walker, head of immigration practice at the Dickinson Wright law firm, said she is particularly concerned that increased scrutiny by federal anti-fraud agents could slow things down and potentially create “more difficulty in getting your H-1B visa status approved.”

“That worries me,” Walker, a former national president of AILA, said in an interview with VOA.

The incoming administration’s plans for the visa program remain uncertain. The Trump transition team did not immediately respond to a VOA request for comment, but a campaign spokesperson said in a statement to The Washington Post earlier this year that Trump “will restore all of his prior [immigration] policies” immediately upon returning to the White House.

While Trump’s new administration is expected to focus on cracking down on undocumented immigrants, immigration lawyers say the new administration could target legal as well as illegal immigration, pointing to the appointment of immigration hardliners such as Stephen Miller, Trump’s incoming White House deputy chief of staff.

Yet signals are mixed. Trump has floated the idea of giving green cards to foreign graduates of American colleges and universities. And key Trump ally Elon Musk is a staunch supporter of the H-1B program, with Tesla hiring 742 new foreign workers in fiscal year 2024, ranking 16th among U.S. companies with the most H-1B visa approvals.

While it’s unclear what influence, if any, Musk will have on Trump’s immigration policies, Walker said she’s “hoping he may be in there to try to help tweak things that are from a positive perspective for the H-1B category.”