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ADventures in Law

An Update on KOSA and COPPA 2.0

7 More US Attorneys’ Offices Issue Whistleblower Non-Prosecution Pilot Programs

Catastrophic Accident Response and Safety Client Workshop

INTA Roundtable – Enforcement: AI and Fair Use

When the 2024 presidential candidates discuss immigration, and when the media covers it, they are often talking about unauthorized immigrants, which colloquially means non-U.S. citizens who enter and stay in the U.S. without legal authorization. However, <a href="https://www.pewresearch.org/short-reads/2024/07/22/key-findings-about-us-immigrants/#:~:text=Most%20immigrants%20(77%25)%20are,24%25%20were%20lawful%20permanent%20residents" target="_blank" rel="noreferrer noopener">the vast majority of immigrants in the U.S. – 77 percent – are here lawfully</a>. In 2023, they accounted for <a href="https://www.bls.gov/news.release/pdf/forbrn.pdf" target="_blank" rel="noreferrer noopener">nearly 19 percent of the U.S. civilian labor force</a>, including <a href="https://www.aila.org/library/think-immigration-i-wish-people-understood-that-the-u-s-healthcare-system-depends-on-immigrants#:~:text=Currently%2C%20one%20in%20five%20physicians,care%20providers%20in%20the%20area" target="_blank" rel="noreferrer noopener">more than 20 percent of physicians (more than half in rural areas), 16 percent of nurses</a>, <a href="https://www.csis.org/analysis/innovation-lightbulb-foreign-born-share-us-stem-workforce" target="_blank" rel="noreferrer noopener">19 percent of STEM workers</a> and <a href="https://www.americanimmigrationcouncil.org/news/new-report-reveals-immigrant-roots-fortune-500-companies">almost half of all Fortune 500 company founders</a>. Many of them obtained lawful status and employment authorization by means of the U.S. government’s employment-based visa program. In fact, in 2023, nearly one-quarter of all U.S. immigrants obtained their green card through employment-based pathways.

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Of the employment-based visas available in the U.S., the H-1B is by far the most popular. In 1990, Congress established the H-1B visa program, which authorizes up to 85,000 noncitizen professionals to temporarily live and work in the U.S. in specialty occupations, such as engineering, architecture, accounting, law and medicine. It is the primary, nonagricultural employment-based visa available to noncitizens hoping to work in the U.S. How will it fare under a Donald Trump or Kamala Harris presidency?

The H-1B Program Under a Trump Administration: Heightened Scrutiny, Tighter Restrictions and Slower Processing

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Trump has made immigration a signature point of his 2024 campaign, <a href="https://www.reuters.com/world/us/how-trump-would-crack-down-immigration-second-term-2023-11-14/">promising to crack down on illegal immigration and restrict legal immigration.</a> The H-1B program under Trump will look very different than it does under Joe Biden. In 2023, the U.S. government denied only 3.5 percent of all H-1B petitions. That is in stark contrast to the denial rates under the Trump administration, which peaked at 24 percent and declined only in his final year in office following a series of adverse judicial rulings.

Having called the H-1B visa program “very bad” and “unfair,” Trump has made clear that he disapproves of the process by which initial H-1B visas are granted, a true lottery in which employers submit registration requests on behalf of noncitizens they would like to hire. The government then chooses registrations at random to grant permission for employers to file H-1B petitions on behalf of those selected. Trump has previously expressed that he would prefer that the 85,000 H-1B visas be allocated in wage order, prioritizing the highest earners.

A second Trump term would likely bring new, and perhaps more lasting, restrictions on the H-1B program. His last administration, for example, sought to redefine the employer-employee relationship, which could diminish the number of employers willing to sponsor noncitizens for H-1B visas. Separately, the Trump Department of Labor attempted to drastically raise the minimum wage employers would be required to pay H-1B visa holders. In some cases, the new wage was 54 percent above market, which made it impractical for employers to hire H-1B workers.

The H-1B Program Under a Harris Administration: More of the Same

Harris has remained largely silent on employment-based immigration throughout her abbreviated 2024 campaign, opting to discuss solving the border crisis and providing a path to citizenship for undocumented immigrants. As vice president, she focused primarily on global migration issues rather than on domestic immigration policy. Her history, however, is instructive. Harris is herself the daughter of immigrants, an Indian mother and Jamaican father. As a senator in 2019, she introduced the <a href="https://www.lee.senate.gov/2019/2/sens-lee-and-harris-introduce-fairness-for-high-skilled-immigrants-act" target="_blank" rel="noreferrer noopener">Fairness for High-Skilled Immigrants Act</a>, a bill that would remove per-country caps for employment-based green cards. The Biden-Harris administration has also pushed for measures to clear the large backlog of employment-based visa applicants and expand the number of visas available. Another presumptively gridlocked Congress makes any major changes unlikely, but her vocal support for expanding legal immigration pathways suggests a continuation of Biden’s immigration policy, which itself was focused on undoing many of the Trump administration’s more restrictive policies.

Given Trump’s continued focus on immigration throughout the 2024 campaign, and his promise to launch “the largest deportation operation in the history of our country,” employers can expect a restrictive approach to employment-based immigration if he is given a second term. Increased Requests for Evidence would delay processing times, increased scrutiny of petitions would result in a higher percentage of denials, and increased rules limiting H-1B accessibility would impede the efforts of U.S. employers seeking to hire new H-1B workers. On the other hand, given the Harris campaign’s lack of immigration-related policy pronouncements, we assume that employment-based immigration under a Harris campaign will look much as it does now.

The Future of Employment-Based Immigration Policy in the US: A Return to the Old or More of the Same

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