© Farhad Sethna, Attorney, 2025, all rights reserved.

 

Right after Christmas, 2024, DOGE co-executives Musk and Ramaswamy pronounced that H-1B workers were critical to the high-tech industry in the United States and their immigration should continue.

https://www.foxnews.com/opinion/david-marcus-big-brained-ramaswamy-musk-pick-fight-cant-win

Ramaswamy was also critical of American families for not raising their kids to standards which would allow them to excel, granting them too much free time, too much television time, cartoons on Saturday, and trips to the mall.

Right wing MAGA were quick to excoriate these two tech geniuses. An opinion on Fox News by David Marcus on December 28 includes the following:

“American college grads deserve a fair shake; They shouldn’t have to compete with H-1B visa competition, and no American should be training their cheaper H-1B replacement.”

The opinion takes Musk and Ramaswamy to task for daring to claim that foreign workers in high school jobs are better equipped than US workers for those same jobs.

What does this mean for the future of employment based immigration in the next four years?

While the Biden administration finalized the H1B rule just last week, it is by no means a bulwark against the anti-immigrant MAGA sentiment. Regulations can, and are, repealed. (For more on this, check out the excellent congressional research service article on that topic, “Presidential Transitions: Midnight Rulemaking” (July 30, 2024))

Thus, despite any safeguards, real, or imagined, that the Biden administration and immigrant advocates may have placed as impediments in the path of a rampaging Trump anti-immigration policy, those regulations probably mere scraps of paper at best.

The overwhelming MAGA philosophy is that “immigration is bad”. Not just illegal immigration, but ALL immigration.

This is borne out by the statements of President-elect Trump, when he talks about repealing birthright citizenship, cancelling the H1B program, curtailing certain classes of family, based immigration, and, of course, preventing the entry of individuals from certain nations as well as curbing asylum and refugee inflows. None of this is new.

What can we expect?

I expect that the H1B requirements will be tightened up considerably. It is possible that new legislation will be passed, which will reduce the number of H1B wage levels to only two, or perhaps, even just one. This will put most H-1B employees out of the financial budgetary reach of prospective US employers. Most employers will not be able to afford the current highest wages of level H-1B employees for entry-level positions.

The Fox News commentator makes a statement – whether intended or not – that foreign workers undercut their US counterparts. This simply isn’t true. The US Department of Labor posts the required wage levels and the USCIS requires intending employers to pay their H1B workers the prevailing wages for that particular position in the specific area of intended employment. Hence, US workers cannot be undercut.

I would also dispute the Fox commentator’s characterization that there are, or should be, sufficient US workers to fill these highly skilled positions. There are not.

It takes at least four years for a student to get through college. Perhaps in the next year, with incredible zeal and persistence, the US Department of Education could convince enough US born high school graduates to attend college for a bachelors, if not a masters, in the hard sciences. Perhaps. Then, if they do enroll it will take four years for them to graduate. Who is to fill the vacant to new hard-science jobs in the next four years?

There are not enough employees – skilled or unskilled – to go around in the United States. Unemployment is at an all-time low. Where is industry and tech going to find their high skill workers from? Most of the employers I speak to cannot even find low skilled workers, much less high skilled workers. How will stifling H-1b employment grow the US economy, and Make America Great Again?

My prognosis for the future:

Things are going to get worse before they get better. The Trumpet administration will instruct the USCIS to clamp down on H1B applications, imposing higher and higher levels of scrutiny on applications. Applications will take longer time to process, given that the USCIS will now begin issuing multiple pages of boilerplate “Requests For Evidence” for almost every application.

Remember that changing the application to “premium process” is no guarantee that the application will still be approved. All that USCIS has to do is to issue a RFE and the premium process clock stops. It restarts only when the additional evidence is submitted, and that too, for the full 14 day premium processing time currently allowed by regulation.

(Note that premium process (monopolistic governmental extortion, in my opinion) is a wonderful way for the USCIS to get an extra almost three thousand dollars per case in addition to the base filing fees and other charges.)

I also see a slowdown in processing I-140 petitions for immigrant workers under all categories. Hardest hit will be the EB-3 category, which is already horribly backlogged for India and China. As the incoming US government wages an economic and political war against the Chinese, US companies hiring Chinese nationals, and those nationals themselves stand to suffer the brunt of the crossfire.

Conclusion:

What does the immediate and mid-term future hold for employment-based Immigration?

I see employment-based immigration being severely threatened over the next four years. Only if strong Republican-supporting institutions such as the National Association of Manufacturers, and various chambers of commerce band together with large US employers, and present a united front to the incoming government, will there be any counterweight advocating for a commonsense and measured approach to immigration restrictions.

The die is not yet cast. But the squares on the board are clear. How the dice will roll and the pieces will move depend upon the strength of the various factions within the MAGA hierarchy.

Stay tuned……

© Farhad Sethna, Attorney, 2025

Farhad Sethna has practiced law for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.