The Key Policy Changes By Trump Administration That Impacted Labor Certification and H-1B Visas

On Dec. 28, 2024, President Trump surprised many by declaring his support for the H-1B program, calling himself a “believer in H-1B.” This followed his appointment of Sriram Krishnan as senior policy adviser on artificial intelligence — a decision that drew criticism due to Krishnan’s advocacy for “unlocking skilled immigration,” a stance seemingly at odds with past policies.

This shift in tone could align immigration policy with industry needs, offering opportunities to address talent gaps in critical sectors. As debates continue, the H-1B program’s role in driving innovation and bridging workforce shortages remains essential — a development employers relying on foreign talent cannot afford to overlook.

Introduced in 1990, the H-1B program allows U.S. companies to hire highly skilled foreign nationals for “specialty occupations” requiring at least a bachelor’s degree. It has played a pivotal role in filling talent gaps in technology, healthcare, life sciences, and finance. By enabling access to global talent, the program has been instrumental in sustaining U.S. dominance in technology and innovation. Leading companies depend on H-1B workers, many of whom occupy positions in science, technology, engineering, and mathematics, or STEM, fields. While the majority of STEM positions are filled by U.S. workers, the share of foreign workers — including H-1B visa holders — has more than doubled to 26 percent between 1990 and 2023 — a testament to the program’s importance for maintaining America’s competitive edge.

Indian nationals dominate the program, receiving 72% of H-1B visas, followed by 12% for Chinese citizens. The majority of H-1B visa holders worked in science, technology, engineering and mathematics, with 65% in computer-related jobs, in 2023. Their median annual salary was $118,000. 

A Pew Research report shows that U.S. immigration rose by 1.6 million in 2023, the largest increase in more than 20 years. Immigrants now comprise over 14% of the population — the highest since 1910. Indians are the second-largest immigrant group — after Mexicans — in the U.S. Many Americans fear this surge in immigration could harm job prospects or hinder assimilation.

India has also surpassed China as the leading source of international students, with a record 331,602 Indian students in the U.S. in 2023-2024, according to the latest Open Doors Report on International Educational Exchange. 

Critics of the H-1B program have long argued that it encourages cheap labor and undermines the competitiveness of U.S. workers. They also have voiced concerns about the perceived dependency of H-1B workers on their employer-sponsors, which they allege limits the mobility of these workers. However, these criticisms fail to acknowledge safeguards and provisions already embedded in the program, including:

• Wage Protections: Employers sponsoring H-1B workers must adhere to strict Department of Labor wage guidelines. They are required to submit a Labor Condition Application certifying that the H-1B worker will be paid at least the prevailing wage — the average salary for similar roles in the geographic area of employment. USCIS data indicates an average salary of nearly $130,000 annually for computer-related occupations, which could hardly be described as “cheap labor.”
• Job Portability: The notion that H-1B workers are tied to their sponsors ignores the portability provisions of the program. Under the American Competitiveness in the Twenty-First Century Act, H-1B workers can change employers by filing a new petition. In FY 2023, USCIS received 75,843 “change of employer” petitions — nearly 90% percent of the annual H-1B cap. This highlights the program’s flexibility and dispels the myth that workers are bound to their original employers. 
• Cap-Exempt Employers: A significant portion of H-1B visas is allocated to “cap-exempt” employers, such as universities and research institutions, highlighting the importance of foreign talent in advancing innovation. Yet, the debate often overlooks how these institutions contribute to the economy and workforce development.

Under President Trump, policies regarding the H-1B visa program, including aspects related to labor certification, underwent significant changes aimed at prioritizing American workers and tightening restrictions on the program

Here’s a breakdown of key policy changes during his administration that impacted labor certification for H-1B visas:

1. Increased Scrutiny of Labor Condition Applications (LCAs):

• Goal: The Trump administration aimed to ensure that H-1B workers were not displacing qualified U.S. workers or negatively impacting their wages and working conditions.
• Actions:
  • USCIS scrutinized LCAs more closely to verify if employers were genuinely adhering to requirements, such as paying prevailing wages and ensuring that the hiring of H-1B workers wouldn’t adversely affect U.S. workers.
  • This heightened scrutiny often resulted in increased Requests for Evidence (RFEs) and denials of H-1B petitions. 

2. Stricter Interpretation of “Specialty Occupation”:

• Goal: To limit H-1B visas to highly skilled professionals in specialized fields requiring theoretical and practical application of a body of specialized knowledge.
• Actions:
  • The administration narrowed the definition of “specialty occupation,” making it harder for positions that didn’t traditionally require a specific bachelor’s degree to qualify.
  • This impacted roles in fields like computer programming, requiring employers to provide more detailed evidence to demonstrate a job’s specialization. 

3. Increased Prevailing Wage Requirements:

• Goal: To ensure H-1B workers were paid competitive wages and to prevent them from being used as a source of cheap labor.
• Actions:
  • The Department of Labor (DOL) issued a rule in 2020 to significantly increase prevailing wage thresholds for H-1B workers.
  • This rule, though challenged and ultimately withdrawn, aimed to raise minimum salaries for H-1B workers, particularly in higher-paying positions. 

4. Emphasis on “Buy American, Hire American” Executive Order:

• Goal: This executive order directed government agencies to prioritize American workers in the allocation of visas and other immigration benefits.
• Actions:
  • The order provided the policy framework for stricter enforcement and new regulations related to the H-1B program. 

Impact on Employers and H-1B Workers:

• Increased Costs and Uncertainty: Employers faced higher costs due to increased scrutiny, RFEs, potential legal challenges, and potentially higher prevailing wage requirements.
• Higher Denial Rates: Denial rates for H-1B petitions rose significantly during Trump’s first term, creating uncertainty for both employers and prospective H-1B employees.
• Limited Third-Party Placements: Stricter enforcement of employer-employee relationships made it more difficult for companies to place H-1B workers at client sites. 

Potential Impacts on H-1B Visa Allocation

Reinstatement of higher prevailing wages and possible implementation of a wage-based selection process for H-1B visas would shift visa allocation toward higher-wage, higher-skilled roles. Companies aiming to hire early-career or entry-level international talent could face significant financial barriers. Conversely, senior or specialized roles could become increasingly competitive, emphasizing experience, advanced skills, and higher compensation packages.

Sector-Specific implications

Industries heavily dependent on entry-level talent, such as technology startups, might encounter considerable challenges, potentially needing to rethink hiring strategies or pivot towards alternative visa pathways (e.g., L-1 or O-1 visas). Sectors with larger salary ranges could see increased concentration of visas at senior levels, affecting organizational structures and career progression strategies for international employees.

Broader Implications and Proactive Steps 

Increased prevailing wage requirements could affect U.S. business competitiveness, particularly in innovation-driven industries reliant on international talent. Companies should actively engage in advocacy efforts by: 

• Directly communicating with policymakers and submitting formal comments
• Actively participating in industry associations’ lobbying initiatives
• Raising public awareness through publications and sharing data

Encouraging employee involvement in contacting elected officials to emphasize the economic benefits of balanced immigration policies.

More than a million Indians, including dependents, are currently waiting in employment-based green card categories. For now, despite the political turbulence in the U.S., Indian interest in H-1B visas remains steadfast, with students resolute in pursuing the American dream.

---

Amy Ghosh is a Los Angeles-based Attorney at Law, specializing in Immigration Law, Family Law, and Employment Law, among others. She can be reached at: amygesq@gmail.com