Essential Strategies for In-House Counsel: Navigating Upcoming H-1B Visa Program Changes

Although the initial registration period for the fiscal year 2026 H-1B visa program is expected to open as usual for employers in March 2025, much uncertainty persists about the types of changes that may be implemented by the new Trump administration.

President Trump has warned of strict immigration enforcement measures in the works. He also has a history in this area. Near the end of his first term, he signed an executive order temporarily suspending new H-1B visas through the end of 2020. More recently, during the post-election transition period in 2024 - 2025, a feud appeared to emerge between his most vocal supporters over the future of the program.

“The split over the H-1B visa program, which allows skilled workers like software engineers to work in the United States, has pitted hardline immigration opponents against some of President Trump’s most prominent backers in the tech industry, who say they rely on the program because they can’t find enough qualified American workers,” reported The New York Times.

Understanding the Origins and Evolution of the H-1B Visa Program

The H-1B visa program was created in 1990 in response to a looming labor shortage in the U.S., particularly with high-skilled workers. President Bush issued a statement on the day he signed The Immigration Act of 1990, declaring that it “recognizes the fundamental importance and historic contributions of immigrants to our country” and would “encourage the immigration of exceptionally talented people, such as scientists, engineers and educators.”

Today employers submit a formal application to the U.S. Citizenship and Immigration Services (USCIS) on behalf of a foreign worker they want to hire in the U.S., describing the job and the qualifications of the worker. If approved, the H-1B visa provides temporary status in the U.S.—not residency—but many employers then sponsor workers with H-1B visas for a green card and help them to eventually pursue U.S. citizenship.

The program has proven to be quite popular with employers for the past 35 years, creating an important vehicle for addressing labor pool shortages in specific areas.

“The H-1B non immigrant visa program allows U.S. employers to hire foreign workers in specialty occupations to work temporarily in the U.S.,” writes Eileen Lohmann of Berry Appleman & Leiden, in a recent Law360 Expert Analysis column. “This in-demand program is the primary pathway by which employers can recruit and hire foreign workers with expertise in specialized fields such as technology, engineering and healthcare — often filling crucial skills gaps.”

However, a vocal segment of President Trump’s supporters continues to rail against the program and contend it has become abused by employers as a vehicle for hiring cheaper foreign labor, making its future uncertain in the next four years. At minimum, in-house counsel need to be vigilant about the discussions underway in Washington and prepare for possible changes to the program that make H-1Bs trickier and more expensive to navigate, according to legal observers.

“Companies using the H-1B visa program to hire skilled workers from abroad should prepare for an application process that takes longer and costs more, along with site visits and heavier regulation of the program,” reported LegalDive.

Proactive Strategies for In-House Counsel: Navigating H-1B Visa Program Changes

Experts recommend that in-house legal departments conduct comprehensive risk assessments of their organization’s H-1B visa dependencies. This includes identifying key positions and skill sets that rely heavily on H-1B talent, then evaluating the potential business impact of program changes.

Next, map out alternative immigration categories that could serve as backup options for critical positions, such as L-1 visas for intracompany transfers, O-1 visas for individuals with extraordinary ability, or employment-based green card applications.

Then create detailed contingency plans that address various scenarios. For example, immigration policy changes affecting wage requirements, qualification criteria or processing procedures will require swift adaptation of internal hiring and retention strategies. In-house counsel need to lead the way in developing standardized processes for responding to regulatory shifts while maintaining compliance.

Success in managing any H-1B program changes will also require strong partnerships across the organization. Establish close working relationships with HR and business unit leaders to ensure alignment on workforce planning and compliance requirements. Regular cross-functional meetings can help identify potential issues early and develop coordinated responses.

In addition, robust documentation and strong internal controls become particularly crucial during periods of regulatory change. Develop and maintain detailed tracking systems for H-1B employees, including visa expiration dates, location changes and material changes in job duties. Implement comprehensive documentation protocols for all H-1B-related decisions and actions — as well as standardized templates and checklists for common H-1B processes — to ensure consistency and thoroughness across the organization.

Resources for In-House Counsel

In-house attorneys need access to timely legal news and insights to help them monitor changes in developments surrounding the H-1B visa program and be prepared to balance business continuity with strict compliance amid any regulatory shifts.

Practical Guidance from LexisNexis® offers a number of resources to assist with this review, including:

• H-1B Visas: Specialty Occupation Nonimmigrant Visas, a detailed practice note developed by immigration law practitioner, Lilah Rosenblum, Rosenblum Immigration Law, PLLC;
• H-1B Nonimmigrant (Temporary) Visa Petition Checklist, a helpful guide to ensure you are filing a complete and effective petition in support of an H-1B visa petition; and
• Visa Sponsorship for Employers Video, a brief video narrated by two employment lawyers at Mayer Brown who review visa sponsorship options available to U.S. employers, focusing on H-1B, L-1, O-1 and treaty-based visas.

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