Impact of Trump's Second Term on Legal Immigration: An Attorney on Employment-Based Immigration, H-1B, and Visa Vetting Trends

Host: After Trump took office, the crackdown on illegal immigration has been evident to all. But will the status of most legal immigrants in the U.S. be affected? If so, in what ways? How significant will the impact be? And what impact might it have on different categories of immigrants? In fact, many people are uncertain, so we'd like you to talk about what impact some of Trump's policies after taking office will have on legal immigrants overall. Could you give us a brief introduction?

Attorney Yang: Hello everyone, I am Attorney Yang from New Weiming Law Firm. Let me first answer this question from an overall perspective. I believe there will be no major changes in the short term for two reasons: First, immigration issues involving quotas must be changed through congressional legislation, and cannot be changed by executive order overnight. At the same time, you know that the two parties in Congress often have struggles, and major changes in immigration law like quotas often take a very long time to reach consensus before they can be passed in Congress. On the other hand, everyone certainly knows that Trump has recently been busy arresting and deporting illegal immigrants, and also busy auditing accounts with Musk, so he may not have time to attend to legal immigration matters. Therefore, I believe there will be no major changes in the short term.

Host: Among his current executive orders, are there any that relate to legal immigration or could have an impact?

Attorney Yang: As far as I know, there are no executive orders directly related to employment-based immigration like EB1 and NIW, which are common, or family-based immigration.

Host: But his overall direction should be to strengthen scrutiny, right?

Attorney Yang: That's right. Looking back at Trump's previous term, we saw that immigration application requirements were raised, especially for applicants with STEM backgrounds, and the scrutiny of I-485 adjustment of status and immigrant visas also became stricter.

Host: For international students in the U.S. who plan to apply for NIW or EB1, do they need to prepare more on their own? What suggestions do you have? For example, should they strengthen their background, or are there aspects they need to pay more attention to during preparation than before?

Attorney Yang: My advice is to apply as early as possible, because regardless of who is in office, immigration application standards have been rising. Now that Trump is in power, with his emphasis on 'America First,' considerations such as whether your work benefits the U.S., creates jobs, or enhances American competitiveness will certainly be stricter than before, so the background requirements for applicants will also increase. Therefore, applying early—while Trump is still entangled with other matters—is beneficial. Additionally, I do recommend that applicants find an experienced attorney to handle their case, especially in articulating how your work relates to U.S. national interests; an experienced immigration lawyer can better argue that connection and more effectively demonstrate that your work benefits U.S. national interests.

Host: One major change is that employment-based immigration previously usually did not require an interview. Frankly, when submitting I-140, USCIS has already investigated your background and work, and since you've been in the U.S., it seems that in most cases no further interview was needed. But during Trump's previous term, all employment-based immigrants later started being required to attend interviews, right?

Attorney Yang: Yes. We expect similar policies to be introduced under Trump this time. The interview itself may not be a decisive issue for most people, but based on our previous observations, some clients often make small mistakes during interviews. For example, they forget what they wrote in the application form, or they get a date wrong when asked during the interview, and as a result, the immigration officer issues an RFE requesting additional materials or explanations. Although some applications were eventually approved, it caused unnecessary trouble. So I suggest that for the foreseeable future, whether adjusting status in the U.S. or submitting an immigrant visa application abroad, one should take it more seriously, especially being extra careful during interviews. Our law firm also provides interview coaching to help you better understand how to pass such immigration interviews and what questions immigration officers typically ask.

Host: These may increase the overall processing time, is that possible, right?

Attorney Yang: Yes. The timeline will be extended. Another reason is that the number of applicants has increased, so the backlog will also grow longer. We can see that in recent months, the priority dates have been advancing very slowly. So, as I mentioned earlier, if you want to get a green card, you should submit your application as early as possible to secure a more favorable position in the green card queue.

Host: What about other categories? For example, student and work visas, what impact might Trump have on them?

Attorney Yang: As for visas, based on experience from Trump's last term, the most affected was the H1B work visa. Last time, Trump issued an executive order to raise the wage requirements for H1B, and scrutiny of H1B became stricter, especially regarding company qualifications and individual qualifications, resulting in more RFEs and more denials. This time, I expect he will still propose legislation to raise H1B wage requirements or use executive orders to change the requirements, which would be very unfavorable for H1B applications and have a significant impact.

For F1 visas, signs have already emerged recently: many F1 applications from mainland China are being denied, especially those with STEM backgrounds, in sensitive majors, or from sensitive schools. As Trump's administration becomes more entrenched, I expect the impact will be even greater.

As for B1/B2 visas, I think this is a relatively less affected area. Of course, in the past year or two, some people have reported—and our clients have also reported—that obtaining B1/B2 visas in mainland China is more difficult than before. Trump's coming to power may make the situation worse, but compared to F1 and H1B, the impact on B1/B2 visas should be relatively smaller.

Host: For ordinary H1B, what are the main reasons for denial?

Attorney Yang: Yes. When USCIS issues an RFE, it usually needs a pretext, and a common one is questioning whether the applicant's job qualifies as a specialty occupation—meaning your job does not require a bachelor's degree or professional skills. To address this, we have a comprehensive approach. For example, we can provide more detailed job duties to show that the knowledge and skills required for the position cannot be acquired with a high school diploma or associate degree. We can also obtain certifications from professional organizations to prove that such a position and responsibilities require at least a bachelor's degree. In short, if you encounter this type of RFE, I recommend hiring an experienced attorney to handle it for you.

Host: I recall there was another aspect of scrutiny at that time—how to define the employer-employee relationship. I briefly looked at it but wasn't very clear. Could you explain it to us?

Attorney Yang: Sure. The so-called employer-employee relationship, in simple terms, means that you can be fired by the employer—that's what constitutes an employer-employee relationship. For example, if the company is solely owned by you, with you holding 100% of the shares, then the company cannot fire you, right? In that case, there is no reasonable employer-employee relationship. For instance, if you hold 49% and another person holds 51%, then you can be fired by the company, and the employer-employee relationship can be established.

Additionally, the employer-employee relationship also involves another issue: the employer must have actual work for you to do. For example, some people set up a shell company with no actual business and try to sponsor someone for H1B; such cases are often denied because there is no reasonable employer-employee relationship—there is no work for you to do, and it cannot be proven that they can pay your salary. So these are mainly the two aspects.

Host: Several friends have asked me whether it's feasible to open a company in the U.S. and use it to sponsor their own H1B. Is it possible? If so, under what conditions is it feasible, and under what conditions might it lead to an RFE or denial? Could you briefly explain?

Attorney Yang: Sure. First, the company must be actually operating and have business. Second, as I just mentioned, there must be an employer-employee relationship, so the company cannot be controlled by you or solely owned by you. You need to establish a structure with multiple shareholders, for example, and your shareholding cannot be the majority—meaning the company cannot be controlled solely by you. In that case, the company can still sponsor you for H1B.

Host: I previously saw news reports that before Trump took office, some universities told international students to try to return before Trump's inauguration on January 20. Now, for those currently in the U.S., if they plan to take a cruise to the Caribbean or travel to other places abroad, would such plans be affected?

Attorney Yang: I think this should be discussed separately. Generally, those working at companies and traveling abroad on H1B visas should not be significantly affected and are relatively safe. However, some people on H1B visas doing research at universities, especially in sensitive fields, and who previously obtained degrees from sensitive schools, may face difficulties at entry and could even be denied entry.

Host: If someone already has a green card and now wants to apply for naturalization, will this aspect be affected by Trump taking office?

Attorney Yang: The impact should be relatively small. For green card holders, as long as you maintain your U.S. green card status, stay enough days for naturalization requirements, have no criminal violations, and legally file your taxes, you generally won't be affected. Of course, for people from certain countries, such as Iran and Russia, scrutiny will certainly be stricter, background checks will be more rigorous than before, and the processing time may be longer.

Host: I saw an executive order from Trump. It wasn't specifically targeting one category but was rather broad, saying it would strengthen the vetting process, including possibly banning entry from certain countries, but it didn't specify which countries. Based on our normal understanding, it should not include the countries of the Chinese region, right?

Attorney Yang: Yes, that's right. I think it will not include mainland China. I think it may still include the several Muslim countries that he banned entry from last time.

Host: Let me see if my understanding is correct: on a macro level, priority dates and quotas should not be affected for now, because those require congressional legislation. But the intensity of enforcement may change. Based on what we saw during the previous term, including stricter scrutiny of H1B, and I even recall news reports that the denial rate for H1B renewals was higher than before. Everyone should be mentally prepared, right?

Attorney Yang: Yes, that's right. That is, within the legal framework, he will certainly make such scrutiny stricter and make such applications harder to pass.

Host: We need to be more attentive, prepare more thoroughly, and be ready for possible RFEs. Also, processing times may be longer than before—basically, these are the potential impacts on legal immigration, right?

Attorney Yang: Yes, that's right. The impact is mainly in several aspects: first, how extensive the materials need to be; second, the wording in the materials; and third, the processing time—all of these will be affected. So you need to be prepared. For example, some people's status may be affected if their renewal is not approved, so they should have a backup plan. Let me give an example: if an H-1B renewal is not approved, one option is to go to a third country first—many IT companies arrange for employees to work in Canada—work there for a period of time, and then reapply and come back. These are all feasible.

Host: All right, that's all for today's topic. Thank you, Attorney Yang, for answering our questions.

Attorney Yang: Okay, thank you.