Lawyers foresee legal stalemates if Trump disrupts H-1B visa scheme

Washington, DC — It's a crisp January morning but for thousands of H-1B visa holders across the United States, the future feels anything but clear.

Staunch loyalists of MAGA (or Make America Great Again), a political movement popularised by US President-elect Donald Trump, are turning up the heat, demanding sharp cuts to the H-1B visa programme — a move that immigration attorneys warn could ignite lengthy legal stalemates and send shockwaves through Silicon Valley and beyond.

The uncertainty is palpable. Several tech companies are urging employees vacationing abroad to return stateside immediately, bracing for potential policy chaos after Trump's inauguration on January 20.

As legal teams scramble to interpret what the administration might attempt, many are asking: Can the president realistically dismantle or curtail the H-1B programme? Or is this another case of political bluster meeting legal reality?

Rachel Ortega, a seasoned immigration attorney based in San Francisco, does not sugarcoat her response.

"This whole thing is a circus act," she tells TRT World in a Zoom call, her voice carrying the weary resolve of someone who has seen this before.

"The H-1B programme is not some executive privilege Trump can wave away. It's a federal law. He'd need Congress to dismantle it. And trust me, Congress doesn't move fast — not even on its best day."

Ortega's confidence is grounded in precedent.

She cites Trump's first term, rife with attempts to curb skilled immigration, many of which ended in legal stalemates.

"The 2020 executive order freezing certain categories of visas? Blocked by the courts. Sudden denial spikes? Challenged and overturned. The Department of Labor tried hiking wage levels overnight — guess what? Struck down," she says, her tone sharp, punctuated like a gavel hitting a courtroom bench.

Over the past four years, Indians have dominated the H-1B landscape, making up over 78 percent of the 265,777 H-1B visas issued by the US in fiscal year 2023.

Despite Elon Musk, the billionaire CEO of SpaceX and Tesla who is set to serve Donald Trump's new administration as an outside adviser, enthusiastically praising the skilled immigrants as the "lifeblood of innovation," many fear that the Trump administration may adopt a hard line under MAGA pressure.

But the story isn't that simple.

In New York City, which hosts about 3.1 million immigrants, immigration lawyer Aaron Himmelbaum sees a different angle.

"Trump doesn't need to dismantle the programme outright," says Himmelbaum, whose clients range from small tech startups to Fortune 500 firms.

"He (Trump) can create enough bottlenecks to make it almost unusable. And that's where he's likely to focus his energy."

Himmelbaum points to the 2019 surge in H-1B denial rates, which hit nearly 24 percent under the Trump administration.

"They didn't need a new law for that," Himmelbaum explains. "They just reinterpreted existing regulations. Suddenly, you had companies submitting the same job descriptions they'd used for years, and they were getting rejected. Why? Because USCIS decided software engineers weren't 'specialised enough.' It's all about how you enforce the rules."

Each year, the US issues 85,000 H-1B visas: 65,000 under the regular cap and 20,000 reserved for foreign professionals with a US master’s or doctorate.

The interplay between executive power and the H-1B programme is nuanced.

While the US president can't unilaterally dismantle it, executive orders and regulatory tweaks can make a big difference in how it's finally implemented. Ortega acknowledges this but says that all such moves would be challenged.

"We have legal guardrails for a reason," she says. "You start messing with established processes — like the wage levels for H-1Bs or the definition of 'specialised occupation' and you're going to spend the next few years fighting lawsuits. That's not a sustainable strategy."

Still, Himmelbaum believes Trump's political calculus might outweigh the legal risks. "Let's not forget the optics," he says.

"The MAGA base sees H-1Bs as a symbol of everything they oppose: globalisation, outsourcing, elites. Trump doesn't need Silicon Valley’s approval. Even a partial crackdown on H-1Bs lets him claim he's 'putting Americans first,' whether or not it's true."

The human stakes of this political tug-of-war are immense.

Himmelbaum nods in agreement, his voice softening.

"It's easy to talk about H-1Bs in terms of policy and percentages. But these are people — families, dreams, careers. Every delay, every rejection, it's a ripple effect. That's the side of this debate we don't talk about enough."

Brain drain to Europe?

As the conversation shifts to the broader implications, both lawyers agree on one thing: the economic stakes couldn't be higher. Ortega doesn't hold back.

"Let’s be real: H-1B workers are innovators, entrepreneurs, taxpayers. If we scare them away, the US doesn't just lose talent — we lose our competitive edge. Canada and Europe are already rolling out the red carpet for these workers. Do we really want to push them into our competitors' arms?"

Himmelbaum, though skeptical, concedes this point.

"Fear has a cost," he says.

"Even if Trump's crackdown doesn't succeed, the uncertainty might make talented people think twice about coming to the US and once that brain drain starts, reversing it won't be easy."

The clock is ticking. For H-1B visa holders, the coming weeks could define their careers. For America, the implications are just as dire.

Ortega offers the final word: "America has always been a beacon for talent, a place where the best and brightest come to dream big. You can't build walls high enough to keep out progress. And if you try, don't be surprised when the world leaves you behind."