Photo-montage by belterz: Getty Images
With immigration issues front and center and the H-1B visa lottery just around the corner, we check in with a business immigration law expert.
Last fall, waiting out the time before a departure over a pastrami on rye and a beer at a large Midwestern international airport, I had one of the more interesting airport conversations of my life with a stranger who sat down across the table.
He was a high-level engineer who was just returning from his traditional annual visit to family in India. Once he knew I was somewhat familiar with the issues faced by long-time visa holders who can never seem to get that green card, he provided me a first-hand view of how it feels to not know your status year to year, even if you’ve been working, paying taxes and contributing to your community in the U.S. for years.
Foreign-born workers today constitute around 20% of the U.S. workforce — 33 million out of a total labor force of 170 million as of January 2025, writes Clark Merrefield of The Journalist’s Resource in a recently posted reporting guide that is a valuable compendium of facts for journalists and non-journalists alike. (The Journalist’s Resource is a project of Harvard Kennedy School’s Shorenstein Center on Media, Politics and Public Policy.)
Merrefield goes on to observe that 20% reflects a steady upward trend that has seen the percentage of foreign-born workers rise by more than four percentage points since 2007.
With immigration restriction and deportation in the air (and on the ground) in this first month of the Trump administration, corporate leaders’ antennae are on full alert where immigration and various types of foreign worker visas are concerned, whether it’s an H-2A visa allowing a temporary agricultural worker to stay up to one year or an H-1B visa. Those are granted to temporary workers in a professional specialty occupation and allow those workers to initially stay up to three years, or up to five years if hired to do R&D at the Department of Defense.
The H-1B program has a cap of 65,000, with a lottery conducted each year in March. A separate lottery is conducted for 20,000 additional Master’s Cap visas available for individuals with U.S. master’s degrees or higher in a field related to their job. Those not selected in the Master’s Cap lottery are automatically fed into the general H-1B lottery, effectively granting them two chances.
The Portland, Maine-based business immigration law firm FordMurray recently posted clear and succinct guidance on preparing for the H-1B cap registration and lottery. I reached out to Russell Ford, co-founder and principal at the firm, with some questions.
With threatened cuts and an overall theme of immigration reduction, how should company leaders be thinking about their approaches to H-1B and related programs involving employment of foreign talent?
Russell Ford: For the most part, at least initially, it appears that business immigration programs, like the H-1B, have been untouched. But, given the environment, planning for future changes is wise. One example is the TN program under our free trade agreement with Canada and Mexico. [Citizens of Canada and Mexico are eligible for a non-immigrant NAFTA professional (TN) visa that grants the holder temporary entry into the United States for business at a professional level.] Given all the issues and pressure being applied to this agreement and to those countries, in particular, it would seem that the TN program is likely to be in jeopardy or, at a minimum, face some strong changes.
Additionally, we have already been seeing changes in adjudications at the Embassy and the border with these applicants. They are facing more scrutiny and, in some cases, receiving wrongful denials based on a misinterpretation of the existing law. In one case, we had an individual obtain a TN at the U.S.-Canadian border and, one week later, the CBP [U.S. Customs and Border Protection] contacted the company to say they made a mistake and that the TN was being revoked. The individual was granted his TN based on his Engineering Degree and Engineering position, which is what the TN regulations provide. However, CBP contacted the company and said that, without a PE license, he was not entitled to a TN (please note, the position he holds does not require a PE license in the state where he is employed). Now we are in the midst of fighting this strange battle with CBP.
Additionally, under Trump 1.0, we saw tighter adjudications on H-1Bs, longer adjudication periods and more RFEs [requests for evidence] and denials, so employers definitely need to prepare — strengthen the petitions when filing, provide more evidence of the H-1B qualifications and be prepared for the lengthy adjudication (i.e., think about premium processing as the only option).
On the green card front, my biggest concern is the government cuts to different federal agencies. The U.S. Department of Labor controls the PERM process, which a majority of individuals must use to begin their green card journey. [PERM stands for Program Electronic Review Management and represents the first step toward an employer-sponsored green card.]
Presently, the PERM process is taking about 15-18 months to complete as the government, even before this administration, had slowed down significantly. If cuts are made to the DOL, my fear is this process will take 36 months to complete, adding significantly more time to what is already a very long process for most, if not all, green card applicants. And, because many H-1B holders need to have a green card in process to extend their H-1B beyond statutory limits, employers now need to start thinking about starting this process within the first one or two years of an individual’s employment under the H-1B with the company.
“Generally, I think the lack of workers in the talent pool is a bigger driver than the immigration crackdown, with companies continuing to seek workers where they can find them and being willing to sponsor workers for positions they need to fill to keep their companies moving forward.”
— Russell Ford, Co-founder and Principal, FordMurray
The public image surrounding deportation is the rounding up of huddled masses or alleged criminals. How are these policies and perceptions also affecting white-collar talent?
Ford: We have seen a trickle-down effect where individuals with proper legal status still feel their status is in jeopardy or in some way compromised. We have had to do a lot of conference calls with clients to outline their rights, outline that nothing has happened to their lawful status, and to help allay fears. We also provide insight on carrying all legal documents at all times even with traveling domestically to ensure they can document their stay in the U.S. (and to help them feel more comfortable that their status is secure).
How do you see the immigration crackdown influencing global corporations’ location decision-making for facility investments?
Ford: So far we have not seen much impact on international hiring. Companies are still looking at legal immigration measures for growing their workforce, finding needed talent and filling open positions. Generally, I think the lack of workers in the talent pool is a bigger driver than the immigration crackdown, with companies continuing to seek workers where they can find them and being willing to sponsor workers for positions they need to fill to keep their companies moving forward.
We all saw the stories in December imploring international students to return to their U.S. university campuses before the inauguration. How have new policies already affected international student enrollment as well as institutions’ outreach to international students?
Ford: Because schools are just now in the acceptance phase for next year, we may not know the impact on numbers until later this year. That being said, outreach has been focused on maintaining compliance with the F-1 regulations (always focused on this but with a little more of a finer point now), being mindful of potential delays and issues with travel, and working with firms like ours to provide seminars to their students on current changes, trends and ways to be mindful about maintenance of status. [F-1 regulations apply to international students enrolled full time at U.S. higher learning institutions.]
To what extent is the sudden attention on immigration an opportunity to highlight systemic issues with various programs involving employment of foreign nationals in the U.S.?
Ford: I don’t think it is. This administration is not necessarily focused on those issues. And there seems to be an internal conflict between Elon Musk, who utilizes the H-1B program extensively for his own companies and understands the positive impact these workers can have, versus other members of the administration who want to reduce legal immigration, which creates a friction that doesn’t appear to allow for a true conversation about immigration reform and changes.
