In the wake of Donald Trump’s election win, immigration attorneys are fielding hundreds of questions from foreign-born workers who want to know what his immigration plans might mean for them.
By Amy Feldman, Staff
S ilicon Valley immigration attorney Sophie Alcorn has been getting calls since Donald Trump became the Republican candidate earlier this year, but on Wednesday, after he won the presidential election, the outreach exploded. She and her team at Alcorn Immigration Law fielded hundreds of inquiries from existing and potential clients by phone, email and social media, many from tech workers worried about their H-1B visas, which are granted to highly-skilled foreign-born workers.
“I think any immigrant is afraid of Trump,” she said. “People are concerned about, Can they continue to live in the United States? How volatile is their immigration status? How predictable will their renewals be? [In his first term] Trump had the extreme vetting policy.”
The result post-election: Foreign-born workers who can complete their immigration paperwork before year end are eager to do so, Alcorn said. With premium processing, they may be able get a response from the government in two weeks—and have their visa settled before Trump’s inauguration on January 20.
During the campaign Trump pledged to conduct a mass deportation of millions of immigrants living in the United States without authorization; there are more than 11 million undocumented immigrants in the country. While Trump has said that he’s not opposed to legal immigration, in his first term he cut back on it, including by banning travel from countries with majority Muslim populations.
A big unknown for tech workers this time is whether Trump’s ties to Silicon Valley through vice president-elect JD Vance and billionaire supporter Elon Musk will shield them from his anti-immigrant push.
“People are asking what’s going to change, but the level of anxiety is not fever-pitched,” said Elizabeth Goss, an immigration attorney in Boston, who recalled the paranoia after the ban in 2017. “We are getting some calls, but I don’t have a run of people saying you must file my case right now. I expected that.”
Instead, she said, many of those calling post-election have more mundane concerns, like whether it’s risky to leave the country for the holidays. “We’re telling people maybe travel over the holidays, but get back before January 6,” she said.
The number of H1-B visas available is small compared to the demand – just 65,000 a year with an additional 20,000 for those who have a master’s degree or higher from a U.S. school. During Trump’s first term, the number of denials rose dramatically. They reached a peak of 24% in fiscal 2018, up from 6% in fiscal 2015. By fiscal 2022, the rate had fallen to just 2%.
“We’re telling people maybe travel over the holidays, but get back before January 6.”
The process for getting a green card also slowed in the previous Trump administration as more applicants were required to do in-person interviews, something that’s been streamlined under the Biden administration. “[Trump adviser] Stephen Miller could come in and say, I don’t trust anybody, we want to interview everyone,” Goss said.
For foreign-born workers with H-1B visas, there could also be slowdowns or technical changes. In the alphabet soup of visas, some H1-B holders are also worried about the related H-4. That’s the visa that allows the foreign worker’s spouse to live in the U.S. and, under a rule passed in 2015 during the Obama Administration, to get authorization to work legally. It’s a big deal for those couples who have been in the U.S. on a work visa for years with one person slowly moving through the process to get a green card, which can take more than a decade for those from countries with big backlogs like India.
A group called Save Jobs USA challenged the Department of Homeland Security’s rule in 2015 that allowed H-4 visa holders to work in the U.S. In August, the U.S. Court of Appeals for the District of Columbia Circuit Court ruled in favor of DHS. It’s unclear how the employment authorization for H-4 visa holders would fare under the new Trump Administration.
“This [H-1B] program is a political football. It’s been kicked back and forth, blamed as a bogeyman and lauded as a source of innovation,” said Boundless Immigration cofounder and CEO Xiao Wang. While many of the people who receive H-1B visas are highly paid tech workers, others are hired by IT consulting firms like Infosys and Tata Consultancy Services, both of which are in the top 10 sponsors of H-1B visas.
Under Trump, he expects both denial rates and requests for evidence to rise – and perhaps for the wage requirements to increase as well. “I call this the chainsaw effect,” he said. “It gets the job done to cut the number of people that qualify and focuses it on the highly qualified individuals. It also craters the fresh graduate pathway because no one is going to pay $200,000 for a fresh college graduate engineer.”
“Clients are getting more aggressive about what we can potentially do between now and January.”
At Silicon Valley’s big tech companies, numerous foreign-born workers build software or develop AI algorithms. Blake Miller, a partner at Fragomen, Del Rey, Bernsen & Loewy in Irvine, California, said that his corporate clients, including many large tech companies, have been looking at options since Trump first won the Republican primary. “Clients are getting more aggressive about what we can potentially do between now and January to shore up employees and get them in a better spot,” he said.
In some cases, employers are identifying people in their workforce whose visas expire in the next 12-to-18 months, but might be able to be renewed now. For example, someone who received a promotion since their last renewal might qualify to file an amendment, allowing them to renew early for an additional three years. In other cases, employees may qualify for discretionary green cards, such as one for extraordinary ability, that can be pushed through more quickly than a standard green card application.
A.K., an Indian engineer on an O-1 visa (for those with extraordinary ability) at a big tech company who spoke on condition he be identified only by his initials, is now filing his paperwork for an expedited green card. His attorney advised him to get his application in quickly, but he’s less worried about what Trump might do for high-skilled foreign workers, he said. “The question is what has Trump done historically and what is he likely to do,” he said. “This time he has gone on record, on this podcast called All-In, saying he wants to staple a green card to every student visa.”
Attorney Miller is also advising employees to go home to renew their visas now to gain flexibility during the next Trump term. “They get a new visa stamp and have some freedom to travel for a couple of years in case there’s a new travel ban or significant delays at the Department of State,” he said.
While companies have yet to rethink their decisions to hire foreign-born workers, Miller said he wouldn’t be surprised if companies pulled back on hiring them. “Depending on the policies that the second Trump administration comes out with, I think we will quickly see business feel the pain of restrictive immigration. It’s longer processes, potentially higher denials,” he said. “If all those trends and policies return, employers will certainly get frustrated and I’m sure some of them are going to second-guess hiring a foreign national who is the most highly qualified person.”
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