Trump’s Sudden H-1B Move Was a Recipe for Chaos. Clarity Came Far Too Late

Now that the $100K confusion of the weekend is behind us, there are several aspects of it that deserve scrutiny.

On Friday, 19 September, the Trump administration announced that each H-1B visa petition would require a supplementary fee of $100,000.

(Photo: The Quint) 

“Ladies and gentlemen, this is your captain speaking. Due to the current circumstances, obviously they are unprecedented for us here at Emirates. We are aware that a number of passengers do not wish to travel with us, and that’s perfectly fine. All we ask is that if you wish to offload yourself…”

The announcement, made onboard a flight waiting at San Francisco airport on Friday, 19 September, was necessitated by passengers having learned that US President Donald Trump had made sweeping changes to the H-1B visa in the US, and that those changes would come into effect in less than two days, a minute after midnight on Sunday, 21 September.

In the chaos, confusion, and uncertainty that has unbound since, one demographic that is most impacted are Indian workers in the US. This is because in recent years, around seven in every 10 successful H-1B applications have gone to Indians.

Despite a clarification that has followed since, what really is the fallout of Friday’s presidential proclamation on H-1B visas? And how will it impact Indians currently working, or seeking to find work, in the US?

Amidst all the new questions that the events of this past weekend have thrown up, there are some telling clues too of where this might be headed.

The Cruelty of the Chaos

On Friday, after the Trump administration announced that each H-1B visa petition would require a supplementary fee of $100,000, companies such as Microsoft, Meta, Amazon, Goldman Sachs, and more began issuing advisories to employees on H-1B work visas to return to the US before the presidential proclamation went into effect—in a day and a half. 

The result? Panicked visaholders outside the US began booking the next flight back, wondering if they would make it back in time. A woman shared on Instagram that her partner was flying back from Rome in the middle of a vacation. Others cancelled trips travelling out of the US at the last minute.

It was utter and complete chaos.

The reason? The lack of clarity on whom this proclamation on H-1B visas would actually impact. The vagueness of the presidential proclamation was made worse by contradictory statements made by the White House.

For instance, the wording made it seem that the proclamation could prevent even current H-1B visa holders from re-entering the US unless their $100,000 fee was paid. There was no exemption explicitly specified for current H-1B visa holders. 

What added to that fear was that Commerce Secretary, Howard Lutnick, while standing next to the President during the announcement of these changes, said that it was going to be an annual payment of $100,000 per visa holder—and not a one-time payment. However, the actual presidential proclamation made no reference to an annual payment and made it seem like a one-time payment “during the H-1B visa petition process”.

It wasn’t until Saturday afternoon that the White House clarified that current visa holders would not fall under the ambit of the new order—and the changes would only be implemented from the next H-1B visa lottery cycle. By that time, H-1B visa holders had already made their last-minute plans to return to the US with utmost urgency, or if they were about to leave the country, to not do so.

Trump’s move was made to induce shock and awe. Addressing the details of the policy accurately—even something as important as whether it was an annual payment or a one-time fee—and the nitty-gritties of whom it impacted were seemingly not a priority.

Many would argue that when it comes to Trump, the panic that individuals on H-1B visas and their families faced over the weekend was probably part of the point.

The shock and awe doesn’t work as well for Trump politically without the frenzy that accompanies it, including in the media.

And so, like a lot else during his first eight months back in the White House, from tariffs to immigration enforcement, the rollout of the H-1B visa changes too was predictably unpredictable. 

The Handpicked Exemptions

Now that the confusion of the weekend is behind us, there are several important aspects of the proclamation that deserve scrutiny. Among them is an important clause, in the fine print of the presidential proclamation, that has largely escaped media attention so far.

Section 1(c) of Trump’s order on H-1B visas is a clause that basically allows the Trump administration to exempt any specific individual, any specific company, and any specific industry of its choosing from this new rule of $100,000 payments for each visa.

The Secretary of Homeland Security can unilaterally decide, in their discretion, that the individual, company or industry receiving the H-1B visa is “in the national interest and does not pose a threat to the security or welfare of the US” and exempt them from the payment of the fee.

What is the impact of this clause going to be? 

Undoubtedly, it will lead to companies and industry bodies lobbying with the President and his aides to be placed in the list of exemptions. This could include kowtowing to the President, as we’ve seen the leaders of Big Tech companies such as Apple and Meta do in recent weeks. It could involve not criticising the President and his administration in any way—and instead lavishing Trump with praise and gifts. It could involve closing down lawsuits against Trump, and paying him millions of dollars in settlements while doing so. It could involve paying those close to the President millions of dollars for projects they are collaborating on.

The ways of ingratiating oneself or one’s company to Trump and his administration are many. And it would come as no surprise if an additional key incentive to do so for many of the country’s biggest companies would be to be added to this list of exemptions in the H-1B visa order, so that they can save millions of dollars while hiring foreign talent for their workforces.

Another Tool to Silence Criticism, Enforce Trump’s Will

The additional benefit for Trump would be that companies or industries added to the list of exemptions would have a sword hanging over them—criticism of Trump or going against his wishes in any meaningful manner could result in the company or industry being removed from the list of exemptions, at a huge potential financial cost to them.

It’s like the situation with comedian host Jimmy Kimmel, whose removal from late night programming was not carried out directly by the Trump administration, but instead was the result of pressure from the Federal Communications Commission (FCC). ABC affiliates Nexstar and Sinclair are seeking crucial FCC approvals, and getting those approvals could become easier if a comedian critical of Trump is removed from the air. Nexstar is seeking FCC approval for a merger, while both Nexstar and Sinclair would like the FCC to repeal a rule that limits any broadcasting company from reaching more than 39 percent of US households.

Akin to how the FCC approval process is a sword over media companies seeking certain changes to their operations, granting or withholding exemptions from the $100,000 H-1B visa fee will become another tool by which Trump could exert a heavy-handed influence over companies and industries seeking the financially lucrative fee exemptions.

Legitimate Criticisms, But Is This the Answer?

None of this is to say that the H-1B visa system as it operated before Trump’s proclamation was without its ills. Indeed, it had many of them. There have been repeated accusations that companies hire foreign workers on H-1B visas for cheaper than they would for American workers.

In January this year, Senator Bernie Sanders, a fierce critic of Trump, wrote in an opinion piece on Fox News, “H-1B visas hurt one type of worker and exploit another. This mess must be fixed.”

Sanders was weighing in on a debate over H-1B visas that had broken out in the weeks leading up to Trump’s inauguration. He wrote,

“As a result of the H-1B guest worker program, major corporations are now importing hundreds of thousands of low-paid guest workers from abroad to fill the white-collar technology jobs that are available.”

There have also been significant ways in which the H-1B visa application process has been sought to be gamed and scammed. A Bloomberg investigation last year had exposed how thousands of middlemen (many of them Indian) and companies that farm out IT workers exploit flaws in the H-1B visa lottery while other US businesses and talented immigrants lose out.

So, the H-1B visa system definitely had its fair share of problems. But is Trump’s flashy $100,000 fee the solution? First up, $100,000 for each visa is an amount that is so expensive it will disincentivise companies from even seeking to hire foreign workers on H-1Bs.

Secondly, remember that the likes of OpenAI, Google and Meta aren’t the only companies that sponsor H-1Bs. There are smaller companies, too, who will be financially muscled out of the ability to hire foreign talent through this route.

Thirdly, if the policy of the $100,000 fee sticks around, this will likely have a major adverse impact on enrollment of international students at American universities. One of the key routes of employment beyond the student visa period for international students has been to be sponsored for the H-1B visa. If obtaining the H-1B visa becomes significantly more difficult, as it will under this new order, international students will be disincentivised towards coming to the US for their higher education.

Universities that have long been viewed as a pathway towards getting employed and settling down in the US will cease to be as lucrative an option for this goal.

Impact on Job-Seeking

Each year, roughly 85,000 H-1B visas are handed out through the visa lottery. But there are also additional H-1B visas given outside of the lottery process, known as cap-exempt visas. These are H-1B visas given to certain nonprofits, institutes of higher education, and research organisations.

There has currently not been any exemption announced for the latter category either. This means that the H-1B process shakeup will also impact those looking for jobs in these fields, such as research or teaching positions at universities and research organisations.

This is a blow to the individuals seeking these positions, but will also likely have an adverse impact on the intake of foreign talent in the educational and research fields in the US. The downstream impact of this could be enormous in the years to come, not just to research itself but also to the economic impact that it spurs.

The overall disincentivisation towards hiring foreign talent that this move will cause will have its impact felt in myriad ways. It could incentivise companies to hire more American workers, but also hurt the prospects of those organisations for whom attracting international talent was crucial to their progress.

For now, the proclamation is to be implemented for a year. And what is certain is that the coming year will be full of added uncertainty for foreigners seeking employment in the US.

The announcement on the Emirates flight stuck at San Francisco with passengers wishing to get off reminded me of a dialogue from a recent Bollywood film that is unfortunately all too apt for foreign workers in the country, or those seeking employment in Trump’s America.

“Kursi ki peti baandh lijiye, mausam bigadne wala hai (Fasten your seat belts, the weather is about to worsen)."

(Meghnad Bose is a journalist based in the US and a professor at The University of Memphis, where he heads the MA program in Open Source Investigative Reporting. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)