Employers who try to extend the visas of their temporary foreign workers must file new justifications for not hiring skilled Americans, say new regulations from the Department of Homeland Security (DHS).
The rule change ended the prior deference rules, which say agency examiners must defer to years-old corporate justifications for foreign workers. The likely result will be many more denials of requests for visa workers, such as the H-1B and J-1 workers being targeted by Vice-President JD Vance’s anti-fraud campaign.
“DHS believes that removing deference [to prior justifications] would enhance program integrity and thereby better protect the interests of U.S. workers, consistent with this Administration’s priorities,” said the DHS statement.
The priorities were sketched on October 8 by Vance:
I’m sure that everybody here understands the game that is being played: You bring in indentured servants from outside the country, you lay off American workers, and if you’re a corporation, you make a ton of money by undercutting the wages of American workers, replacing them with people who, frankly, shouldn’t be in the United States of America to begin with. This is a terribly pernicious system. It’s gone on for too long.
Vance’s growing criticism of the visa programs is spurring more public opposition, despite a near-blackout by the establishment media.
In 2024, the DHS received almost 600,000 new and renewal applications for foreign workers, titled “Form I-129, Petition for a Nonimmigrant Worker.”
The 38-page application does not ask for evidence that employers tried to hire Americans before asking for the foreign worker. “There isn’t anything like that,” said John Miano, an immigration lawyer who defends Americans.
The key factor is enforcement, Miano told Breitbart News: “They’ve got to actually check … [and] the cynic in me says they are announcing stuff that won’t have any effect on the companies.”
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Currently, “they’re not even checking if the [workers’ claimed] worksite is valid,” he added.
The visa numbers are high because the many visa programs are huge and strongly supported by many executives. For example, the government allows U.S. employers to keep a workforce of roughly 2.5 million foreign graduates, including almost 1 million H-1B workers and spouses.
Those white collar migrants get good jobs — partly via Indian favoritism, fraud, and hidden kickbacks — that would otherwise go to American graduates.
The deference rules were established in 2004 by President George Bush, ended by President Donald Trump in 2017, and restarted by President Joe Biden in 2021.
The end of deference is likely to expose fraud, Trump’s deputies noted:
Specifically, for H-1B extension cases from FY 2022 through FY 2025, the overall combined percentage of non-compliance and/or fraud among H-1B sites visited during USCIS administrative and targeted site visits was 22.39 percent. In comparison, when USCIS had a policy of no deference, the overall combined percentage of H-1B non-compliance and/or fraud among H-1B sites visited during FY 2018 through FY 2020 was 16.77 percent.
For L-1A extension cases, the overall combined percentage of non-compliance and/or fraud among L-1A sites visited during USCIS administrative and targeted site visits from FY 2022 through FY 2025 was 24.46 percent. In comparison, the overall combined percentage of L-1A noncompliance and/or fraud among L-1A sites visited from FY 2018 through FY 2020 was 18.37 percent.
The visa programs are set in law, and are strongly backed by business groups. But Trump’s deputies are setting many partial curbs on many visa programs. For example, they are curbing the ability of foreign students to stay in the United States and setting large fees on universities that get work permits for foreign students.
Officials are also setting large fees on H-1B work permits, and forcing migrants to submit justification if they want to extend work permits.
So far, corporate lawyers have persuaded friendly, lower-court judges to block nearly all of Trump’s reforms.
Lobbies for more business migration lamented the Trump reforms. For example, the leading migration firm, Fragomen, Del Rey, Bernsen & Loewy, complained:
If the regulation is implemented, employers are likely to see a marked increase in Form I-129 requests for evidence (RFEs) and an increased risk of denials, with a particular impact on extension of status petitions; this in turn could disrupt the ability of employers to retain sponsored foreign talent and impede projects and workforce planning.
“The administration wants to discourage immigration,” immigration lawyer Jonathan Grode of Green & Spiegel told Forbes.com.
The Times of India worried the reform could constrict India’s economic strategy of sending Indian migrants into foreign jobs:
This means there will be more denials, more documentation, more RFEs. USCIS could reexamine whether the employee qualifies for the position and whether the job meets H-1B requirements. Employers and employees may face additional requests for evidence and documentation.
A growing number of investors and CEOs admit the deep fraud within the visa programs.
India’s tech economy has grown because “a big part of the business was gaming the US visa system to cheaply onshore Indian IT workers into American companies,” Umar Saif, the CEO of a Pakistani tech firm, said on X. He added:
Basically, staffing firms masquerading as IT companies. Washington has finally caught up with this back door. First came the $100,000 fee on certain new H-1B applications. Now, major IT outsourcing firms, Microsoft and Adobe have been suspended from the PERM green-card process over alleged abuse. A visa programme meant to attract skilled talent should never become a back door for cheap staffing.
Few Pakistanis are hired via the Indian-dominated H-1B program.
