Concerns are growing about the future of the H-1B visa program under the second Trump Administration. His previous term showed a lack of support for this visa, which has led to renewed uncertainties for individuals currently residing in the U.S. on H-1Bs and those planning to apply for employment through the program.
As a result, many foreigners are turning their attention to the EB-5 program. This shift is also partly due to Trump’s business-friendly policies, and the EB-5 visa does not require employer sponsorship.
Impact of the previous Trump Administration on the H-1B visa
Data from the National Foundation for American Policy (NFAP) shows that the H-1B denial rate for initial employment (for new hires) was 24% in FY 2018 and 21% in FY 2019 during Trump’s first administration. This rise can be attributed to “restrictive policy changes that courts later ruled unlawful. A legal settlement in 2020 reduced denial rates below pre-Trump levels (4% in FY 2021 and 2.2% in FY 2022). H-1B petitions for “initial” employment are primarily for new employment; for companies, they are typically a case that counts against the H-1B annual limit,” said the NFAP in a recent report.
The annual limit on new H-1B petitions for high-skilled foreign nationals is 85,000, equaling 0.05% of the U.S. labor force.
Overall, the changes made to H-1B visas in the first Trump government made it more difficult to obtain or extend these visas, complicating the immigration status of these foreign workers in the U.S.
These conditions may return based on Trump’s Project 2025 conservative policy guidebook, which includes proposals to reform the H-1B visa program and limit the number of these visas issued yearly. Proposed reforms could involve implementing wage-based allocations to ensure that highly skilled foreign workers are paid competitive salaries and prioritizing individuals with advanced skills. Such limitations could tighten eligibility criteria and block entry-level positions.
Potential benefits of the EB-5 Program in light of Trump’s H-1B restrictions
While the EB-5 Program remained largely unaffected by the prior Trump administration’s policies, EB-5 attorneys remember significantly longer processing times.
However, Trump’s expected reduction of tax liabilities for wealthy individuals during this second term might offset the delays and bureaucratic hurdles, potentially attracting more EB-5 investors.
The EB-5 visa offers several attractive features, including the absence of a requirement for employer sponsorship, new set-aside categories introduced by the legislation reform in 2022, and the option for concurrent filing.
By eliminating the need for a sponsor, the EB-5 visa allows applicants and foreign workers greater control over their immigration status in the U.S. Those who apply under any of the three set-aside categories can access priority processing times, which is particularly beneficial for H-1B holders who are on a tight timeline. Concurrent filing allows H-1B and other U.S. visa holders to adjust their immigration status while their EB-5 petition is pending. This means they can remain in the country, work, and travel while awaiting the progress of their EB-5 application.
Indian nationals holding H-1B visas are reportedly the primary investors benefiting from this pathway to the EB-5 visa.
DISCLAIMER: The views expressed in this article are solely the views of the author and do not necessarily represent the views of the publisher, its employees. or its affiliates. The information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public; do not include confidential information in your question.
