H-1B: a useful tool or a game ripe for corruption?

I.  Another administration, another controversy

Donald Trump has returned to the White House in early 2025 with brand new twists and turns. He appears to have secured his grip, at least for the time being, on all branches of the Federal Government. Unlike during his first term, President Trump possesses great influence in the United States Congress, the Federal court system, and the Executive Branch. As the result, President Trump has much greater sway over foreign policies, border policies, and administrative matters of the United States. However, this increase in control did not translate into unified actions regarding visa-related policies, reflected by somewhat contradictory statements by his government over different type of visas. On one end of the spectrum, President Trump has floated the idea of offering "gold card" visas to interested foreign nationals for a price tag of five million dollars each, and this "gold card" visa is said to come with the same privileges of that of a green card. On the opposite end of the spectrum, Republican politicians are pushing for new legislative actions in the House. According to presently available information, the Republican-sponsored bill shall place a comprehensive bar on Chinese international students pursuing education in the United States. By setting aside the feasibility of these two endeavors, we can certainly observe contradictory stances taken by this Administration in the realm of visa policy.

In December 2024, Elon Musk, arguably one of the most high profile supporters of President Trump, initiated an online debate over the merit of H-1B visas. Since Trump has routinely employed rhetorics against illegal immigration and porous borders, Republican voters and conservative elements in both the federal government and the country as a whole have turned their attention to H-1B, a visa category permitting foreign nationals to legally work in the United States. According to conservative voices, H-1B poses equal threat to American workers as illegal immigrantion, since foreign nationals holding H-1B visas are much more likely to accept lower pay and worse working conditions compared to American workers simply due to the fact that H-1B visas grant companies enormous power over foreign nationals by requiring employer sponsorship. As such, many Republican voters and conservative elements within the government aim to abolish H-1B as a logical next step towards securing the positions of American workers. However, Musk, once a H-1B beneficiary himself, harbors a much more positive attitude towards H-1B visas. Musk argues that H-1B constitutes a major attraction for foreign professionals, and a net positive influx of professionals will undoubtedly advance U.S. national interests. President Trump supports Musk's argument by stating that his companies are also major sponsors of H-1B visa, contrary to his usual rhetorics and the attitudes of Republican politicians as a whole. This public departure by Trump stirs considerable media interests and attracted some public discussion. The American public may have become accustomed to internal strife between members of the Trump Administration since it is a monstrous task trying to form a cohesive front between different factions of the populist MAGA movement, with inherently irreconcilable conflicts in their respective interests, and liberal media outlets are all glad to take in the material. However, underneath all the casual reporting by the mainstream media, a quiet struggle endured by generations of international students slowly emerges.

II. A preferred choice by international students

The importance of H-1B visa for international students cannot be overstated, it has been the pathway of choice for countless international students to remain in the United States after graduation. International students have long utilized H-1B visas both as means to acquire temporary legal status once their F-1 visas have expired and a path of least resistance towards permanent residency.

In order to understand the appeal of H-1B visas, it is necessary to briefly discuss the United States visa system. There are two major categories of visas in the United States, namely immigrant visas and non-immigrant visas. Under this dual-lane system, any potential applicant of non-immigrant visa shall demonstrate to the USCIS that the applicant does not possess the intent to become an immigrant. Therefore, a potential applicant on non-immigrant visa will face tremendous risk of rejection if the USCIS has reasonable suspicion that the applicant harbors the intent to become an immigrant. However, H-1B visa circumvents such risks by allowing the applicant to have dual intent, meaning the potential applicant are allowed more freedom within United States territories without worrying about whether certain actions might raise the suspicion of USCIS. As such, H-1B visa is tremendously helpful when an applicant needs a smooth transition from a non-immigrant visa holder to a potential immigrant. For an international student pursuing a degree in the United States, acquiring an F-1 visa is a must. However, F-1 visa is a non-immigrant visa that only grants legal status during enrollment. Once the international student graduates, the F-1 visa expires and can no longer support legal status. Thus, H-1B has naturally became the perfect transitional visa for international students who have finished their studies but still want to remain in the United States. As a dual intent visa, the H-1B can offer years of legal status for international students to live and work in the U.S., and as a perfect springboard towards permanent residency down the line. It should be obvious as to why H-1B became the visa of choice for many generations of international students since its inception.

Similar to other visas permitting foreign nationals to work in the United States, H-1B has a rather complicated application process. First, the applicant must satisfies certain degree requirements, that the applicant must hold at least a bachelor degree. After meeting the degree requirements, the applicant's employer will submit a Labor Condition Application to the U.S. Department of Labor. The application includes crucial information such as the applicant's position, salary, and job descriptions. Next, the employer will register the applicant into the lottery system via online application at USCIS. Thereafter, the applicant will go through the lottery process which is divided into two rounds. There are 65,000 visa quotas allocated to the first round, if an applicant with a master or doctoral degree goes through the first round without acquiring a visa, said applicant can partake in the second round of lottery with an additional 20,000 visa quotas. Once an applicant is lucky enough to acquire a quota, the applicant needs to submit a full application bundle within 90 days. Once the application is processed and approved by the USCIS, the applicant can obtain H-1B status. Moreover, the initial duration of H-1B can be as long as three years, with an opportunity to extend its duration for another three years. An applicant can also file an I-140 form during the fifth year of acquiring the H-1B status, initiating the transition to permanent residency. During the USCIS's review of I-140, the H-1B visa can be perpetually extended to accommodate the applicant.

III. A shadowy game of probability

It can certainly be inferred from the construct of the H-1B visa that the initial purpose is to offer a leveled playing field for all international students partaking in the lottery system. However, reality paints a different picture as market forces and systematic abuse operates in the background.

According to official data published by the USCIS, the number of annual applications for H-1B visa from financial year 2021 to 2025 range from 270,000 to 800,000, with an average selection rate between 25% and 35%. This number is already quite low. However, recent trends are likely to further suppress the chances of securing a sponsorship. Since 2024, numerous American entities reduce the number of H-1B sponsorships. Amazon, the single biggest U.S. sponsor of H-1B visa, has experienced a 20% reduction in its approved H-1B visas from 11299 in 2023 to 9265 in 2024. Other major entities such as Microsoft, Google, and JP Morgan also experienced drops in the number of approved sponsorships. JP Morgan in particular, saw a drop from 3066 visas in 2023 to 1719 visas in 2024, which is a staggering 45% decrease. With many major companies cutting sponsorships at such a drastic rate, other companies might not be able to make up the difference, thus reducing the probabilities of securing H-1B visas.

Meanwhile, USCIS uncovered systematic abuse in the H-1B lottery process. For the past decade, countless companies specialized in artificially boosting the chance of winning the H-1B lottery sprung up in the United States. These companies accomplish their goal by simply submitting multiple applications for the same applicant, since the H-1B lottery system was designed to select applications instead of unique applicants. According to an estimation made by Bloomberg, these companies secured approximately 15,000 H-1B visas in 2023, roughly 17% of total visas granted that year, through such illicit means. One of these companies exposed by Bloomberg managed to secure hundreds of H-1B visas within a 4-year period by repeatedly filing dozens of applications under different shell companies for every single applicant. It is thus quite obvious that such an industrial level of abuse inevitably reduce the chances of securing H-1B visas through valid means.

In order to counter this systematic abuse, USCIS amended the rules to H-1B application in 2024, changing the lottery selection process from targeting applications to unique applicants. However, new problems also started to emerge. The original purpose of the H-1B visa is to grant a foreign national with unique professional capabilities the opportunity to work for an American entity. However, as economic realities shifted within United States since H-1B's initial inception, many American companies outsourced corporate responsibilities to companies overseas. These foreign companies in turn tend to set up posts within these American companies to better carry out these outsourced duties. Consequently, these posts usually require certain number of foreign workers to enter the United States and perform on a full-time basis. As such, these foreign companies will sponsor H-1B visas for a vast number of their own staff members. Under extreme scenarios, one company can sponsor thousands of its own staff for H-1B visas. Since these job postings in United States generally do not require unique skillsets, it does not matter which staff member won the lottery as long as there is at least one of them secure a H-1B visa. What made matters worse is the indifference by U.S. companies since these foreign workers are much more likely to accept lower pay and worse working conditions compared to U.S. workers. As a result, the H-1B lottery system is again effectively circumvented as the lottery system is flooded by these interchangeable applications each year.

Despite continuing efforts by the USCIS to patch the loopholes in the H-1B lottery system, the overall effect has left a lot to be desired. There were objective changes made to the system in the past decade aiming to realize the initial goal of one person one lottery ticket, however, such amendments ring hollow for international students with only a fleeting window of opportunity to apply for and secure a visa. The material loss resulted from inability to secure a H-1B visa, and all the prospect lost from it, cannot simply be compensated by an administrative adjustment after the fact.

IV.  An uncertain prospect for an uncertain visa

The history of H-1B does not extend past the 1990s. H-1B was established by former President George H.W. Bush after he signed the Immigration Act of 1990. This act split the H-1 visa into two sub-categories, H-1A is reserved for nurses and H-1B targets certain professionals. Despite the constant adjustments made by Congress, past Presidents, and USCIS, the public perception of H-1B has been consistently negative since it entered the public consciousness. The New York Times published a major story directing the public's attention to the H-1B visa. The story revealed that across all sectors, U.S. companies had been utilizing H-1B as a mean to systematically replace U.S. domestic workforce with foreign workers. The New York Times then went on to criticize such utilization of the H-1B visas as simultaneously suppressing U.S. wages and abusing foreign workers. Moreover, Donald Trump has expressed his concerns regarding H-1B as early as 2016, and he initiated actions to eliminate the entire H-1B visa category at the end of his first term but the endeavor was never realized. With mainstream media and high profile politicians criticizing H-1B, the visa's public perception has been steadily worsening since the 2010s. Now fast forward to the 2020s, H-1B visa has became a rare subject matter where the American left and right can agree in their mutual distain. American liberals generally see the H-1B visa as a tool for big capital to further suppress wages and the American working class whereas American conservatives view the H-1B visas as a passage for foreign workers to systematically take over job opportunities meant for American workers.

It is under such context, the future of H-1B became increasing uncertain as Trump's second term became a reality. Despite the current support for Musk's position on H-1B, Trump has taken concrete actions to terminate H-1B during his first term. Moreover, Steve Bannon, the influential conservative figure, has always held a negative view towards H-1B, and Bannon's view can certainly resonate with a significant portion of conservative politicians and voters. Conservative elements within Trump's government has already clash with Musk over the issue of H-1B, and there is no guarantee that this internal division will not escalate overtime. Therefore, taken into account of Trump's track record on political issues, there is a solid possibility that he might withdraw his current support for H-1B in order to consolidate power within his base.

H-1B has a rather complicated legacy. Its initial design was to connect U.S. companies with global talents, but its purpose was buried by bad faith actors over years of systematic abuse. With its public perception continue to sour, it found itself at the center of a political turmoil, with its future becoming murkier by the moment.