How Recent Updates and Trump 2.0 Affect the H-1B Visa Process

By Kayla E. Snider - Skoler Abbott P.C.

January 22, 2025

Deadlines for the H-1B Visa registration process will be here before you know it, and with Donald Trump taking office earlier this week, there is a lot of uncertainty about what changes might be enacted and impact immigration policies. During his first presidency, changes to some immigration regulations made the process more challenging and denial rates for both new H-1B Visas and continuing employment increased. This is why it is more important than ever for employers to get a head start on their planning for the H-1B Visa registration process and be proactive in getting applications ready early. By staying on top of things and submitting H-1B petitions as early as possible, you can better navigate the potential hurdles coming your way.

What is an H-1B Visa?

An H-1B Visa allows US employers to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and requires a bachelor’s degree or higher in the worker’s specialty, or its equivalent.  H-1B specialty occupations may include fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology and the arts.

Overview of the H-1B Visa Process

To submit a petition for an H-1B Visa, employers will first need to pay a $215 fee to register for the USCIS lottery which randomly selects which petitions will be processed. A registration account can be set up online beginning the last week of February 2025. Then, after creating a registration account, employers can register for the H-1B Visa lottery starting the first week of March 2025. Registration for the lottery will be open for two weeks, and then it will close.

After registration for the H-1B Visa lottery has closed, it is expected that employers whose beneficiaries have been selected will receive notice and can continue to the next (and much more complicated) step in the H-1B process. Employers should be aware that selection in the lottery does not mean your petition for an H-1B Visa will ultimately be approved. If an employer is not chosen, they remain in the lottery if USCIS opens the lottery again at a later time for the same fiscal year.

Once chosen in the lottery, employers only have 90 days to file their H-1B Visa petition. This short time frame makes it imperative that employers begin working on gathering the necessary materials early in the application process. If USCIS approves the employer’s petition for an H-1B visa, then the candidate will be eligible to begin their employment in October 2025.

Overview of the H-1B Petition

Submitting an H-1B petition means paying all the associated fees, completing a Form I-129 (including any required H-1B supplements), completing a Labor Condition Application, and gathering all supporting evidence for your petition (resumes, copies of transcripts and degrees, offer letters, passport information, travel records, etc.). This is a complicated and detail-oriented process, so it is important to look at Form I-129 in advance and start preparing documents in the event you are selected in the lottery.

As of January 17, 2025, the USCIS will be requiring the use of a new version of Form I-129. Any H-1B Visa petitions submitted prior to January 17, 2025 (such as requests to transfer employers), should still use the prior version of Form I-129. However, after January 17, 2025, USCIS will no longer accept the previous version of Form I-129. This new update to Form I-129 comes in the wake of the H-1B modernization final rule.

What is the H-1B Modernization Final Rule?

On December 18, 2024, DHS issued a final rule aimed at modernizing and enhancing the efficiency of the H-1B program. This rule also seeks to clarify H-1B requirements, offer more benefits and flexibility to both petitioners and beneficiaries, and bolster program integrity measures. These long-awaited regulatory changes will be officially implemented on January 17, 2025.

Some notable aspects of the H-1B modernization final rule include:

• Clarification that an employer “normally” requiring a bachelor’s degree does not mean that the employer must “always” require a bachelor’s degree.
• Clarification that there are a range of qualifying degree fields that might meet a position’s requirements, if there is a direct relationship between the degree field and the position duties.
• Codification of DHS’s current deference policy that, when a Form I-129, Petition for Nonimmigrant Worker, involves the same parties and the same underlying facts, deference should be given to the prior USCIS determination on eligibility.
• Expressly requiring evidence of a beneficiary’s maintenance of H-1B status be included with a petition seeking an extension or amendment of stay.
• Broadening the definition of ‘‘nonprofit research organization’’ and ‘‘governmental research organization.”
• Providing flexibility to students seeking to change their status to H-1B by automatically extending the duration of their F-1 status and the validity of their post-completion optional practical training (OPT) or 24-month extension of post-completion OPT until April 1 of the relevant fiscal year.
• Codification of DHS authority to request contracts or similar evidence to determine if the specialty occupation position is bona fide.

How Could Trump 2.0 Affect the H-1B Visa Process?

Under his second administration, Donald Trump has expressed he will be emphasizing immigration enforcement, specifically closely monitoring foreign nationals and their employers, and implementing “Hire American” policies that restrict employer ability to capitalize on foreign talent. So, what does this mean for employers that are looking to employ candidates who will need an H-1B Visa?

During his first term as President, Trump had attempted to alter the prevailing wage structure for H-1B Visas. This rule, which was ultimately vacated, would have increased the wage obligations for employers seeking to obtain H-1B Visas for employees. Now that he has a second bite at the apple, it is possible that Trump will again attempt to transform the H-1B Visa program to focus only on the highest-earning foreign nationals. There have been rumors that Trump intends to eliminate Level I and Level II wages from the H-1B program; meaning employers would be significantly restricted in their ability to hire foreign nationals for entry-level and mid-level positions. This means hiring someone right out of college may no longer be an option.

It is also very possible that H-1B Visa petitions will again be subjected to the “extreme vetting” that took place during Trump’s first administration. Employers should be prepared for an increase in Requests for Evidence (RFEs) from USCIS for H-1B Visa petitions. More intensive and more frequent background checks and security screenings, as well as an increase in RFEs would increase delays in visa issuance. Employers should plan and be prepared for the H-1B Visa process to take longer than it has these past four years.

Lastly, there have also been rumors that Trump will impose policy requiring any H-1B visa applicant whose H-1B petition is rejected to leave the United States immediately. This policy would apply even if an employee currently holds an H-1B or other employment authorization status that has not yet expired.

The Bottom Line…

As you can probably tell, the process for obtaining an H-1B Visa can be complicated and the tight turnaround times and demands of the H-1B petition require employers to be proactive in planning for hiring a candidate under an H-1B Visa. This process looks like it will only become more complicated and time consuming under Trump’s second administration. If your company is seeking to petition for an H-1B Visa for a job candidate, consider contacting experienced immigration and employment counsel.

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