Washington DC, January 3, 2025: Donoso & Partners and its Managing Partner, Ignacio Donoso, have once again won the Top 25 EB-5 Lawyers recognition, awarded by EB-5 Investors Magazine. The award is granted to the leading EB-5 lawyers internationally. Ignacio Donoso and Donoso & Partners have won this award every year since 2018, and has achieved a remarkable total of 10 years of Top 25 awards.
Donoso & Partners congratulates and extends a warm “Thank You!” to all of our clients and our superb team of professionals in the US and India.
ELON, BERNIE & TRUMP: THE US VISA LANDSCAPE IN 2025
Washington DC, January 6, 2025: In December 2024, Elon Musk – owner of Tesla, SpaceX and Starlink, and general pot-smoking-400-billion-dollar-man – made several public statements that the in-coming Trump Administration (v.2.0) would solve the shortage of “excellent” engineering talent in the U.S., presumably with the goal of enabling tech companies to grow faster.
Cue the firestorm…
Anti-immigration groups – integral to Trump’s election victories – immediately responded with a barrage of criticism. Musk, it was said, was scheming to pump-up the H1B skilled worker program to give away high-paying engineering jobs to foreign workers.
Steve Bannon, close advisor to the Trump Administration (v.1.0) – recently released from federal prison for defying a Congressional subpoena and now awaiting trial for fraud – chimed in with promises to rip Musk’s face off in a visa fight (figuratively, we hope).
And Bernie Sanders, U.S. Senator from Vermont and presidential candidate in 2015, put his oar in the visa waters by pointing out that Musk was wrong (presumably under the theory that the rich are always wrong). According to Senator Sanders, H1B visa reform was needed to protect the wages of U.S. workers and keep wealthy employers from enriching themselves even further at the expense of local workers and foreign workers.
President-Elect Trump, for his part, let his MAGA faithful fight it out in the court of public opinion: he did not disavow Musk, and did not disavow immigration hardliners. The only thing that was clear from Trump is that change is coming on immigration issues.
So, what does it all mean?
Deciphering Elon
Having read Musk’s early statements from December 2024, I would venture to say that Musk was not speaking about the H1B skilled worker program when he stepped firmly into the visa fray. Instead, I strongly suspect that Musk was referring to solving the visa backlogs for EB1, EB2 and EB2NIW green cards. Musk, therefore, was hinting that the Trump Administration would take steps to address the EB1 and EB2 backlogs.
Nevertheless, immigration hard-liners shifted the conversation to the H1B skilled worker program because it is a proven anti-immigration pressure-point. It was born from the end of the dot.com boom in the early 2000’s, when local U.S. technology workers vigorously complained in the public realm about being replaced by foreign engineers on H1B visas.
Now we are stuck debating the details of the H1B program – instead of discussing how the U.S. can turn a blind eye to green card backlogs that span decades for lawful workers who are complying with all immigration rules.
Backlog? What Backlog?
Most U.S. green card categories are backlogged, plagued with years of waiting time for a green card to be actually delivered into the hands of patient applicants.
Based on his reference to “excellent” engineering talent, Musk appears to be focused on the EB1 and EB2 green card categories. These are the green cards most commonly requested by superbly qualified applicants with advanced degrees and/or track records of success:
- EB1A green card categories cover extraordinary ability immigrants (everyone from Nobel Prize Winners, leading academics, to famous actors and Olympic athletes).
- EB1B green card categories are largely reserved for tenure-track academics at U.S. universities.
- EB1C green cards are for executives and managers of multinational companies.
- EB2 green cards are reserved for professionals with a Master’s Degree or equivalent and U.S. employer sponsorship.
- EB2 National Interest Waiver green cards are reserved for professionals with Master’s Degrees or equivalent, and whose work is of substantial merit and national importance, for the benefit the U.S.
Yet, the EB1 and EB2 categories are subject to years-long waiting lists. We summarize the waiting list situation as of January 2025:
- The EB1 green card categories are backlogged for India and China, with approximately a 3-year wait. That means that Indian or Chinese Nobel Prize Winners (or, for that matter, leading academics, Olympic Champions or senior executives), would have to wait roughly 3-years to obtain U.S. permanent residency.
- The EB2 green card categories are backlogged on a world-wide basis. Indian-born applicants are the worst-off in the EB2 category – courtesy of the tech boom that started after the dot.com dust settled in the mid-2000’s. Indian-born EB2 applicants are backlogged to 2012, and face an estimated wait of 25+ years to receive the green cards. Chinese-born EB2 applicants are backlogged to 2020, and face a wait of approximately 6 years to receive their green card. Persons born in any other country face an EB2 backlog dating to 2023, creating a wait of approximately 2-years to receive a green card.
What Will Trump, Congress (+ Musk + Hardliners) Do?
Despite the volley of arguments and accusations, I have narrowed down some key ideas about the new Trump Administration’s immigration potential policies regarding high-skilled immigrants:
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Immigration hard-liners will win elimination of certain green card programs. These are the likeliest targets for the chopping-block:
- Diversity Visa Program. This program was created in 1990 and grants 50,000 green cards on a lottery basis to persons who hold a high school diploma and have no criminal record. This program – now celebrating its 35th year – may have run its course in the eyes of immigration hardliners.
- Parents of U.S. Citizens. Parents of U.S. citizens would no longer qualify as immediate relatives who have no visa waiting list. Instead, they would either become a preference category (with a visa waiting list) or will be granted a temporary visa (renewable) to live in the U.S. along with their U.S. citizen adult child.
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Narrowing the H1B Skilled Worker Program
The H1B program was created in 1990 and requires employers to demonstrate that they are hiring a skilled worker for a skilled job. To show that they are sufficiently skilled, H1B workers must have a Bachelor’s degree or equivalent in a field of specialized knowledge that coincides with the offered job. Employers must pay a market-based minimum salary set by the Labor Department. USCIS grants 65,000 new H1B visas each year for workers with a minimum of a Bachelor’s degree, and another 20,000 new H1B visas for workers with a minimum of a U.S. Master’s degree or U.S. Ph.D degree.
A revised H1B program would tighten those requirements. For example, the H1B program’s 85,000 visas could become skewed for workers with a U.S. Master’s degree or Ph.D. and grant only limited slots for foreign workers with a Bachelor’s degree. Certain occupations could be eliminated entirely (think: a STEM-only H1B program for graduates with a U.S. Master’s or Ph.D. degree). Similarly, the H1B program could require employers to show that the job opportunity is essential, critical or involving skills that are in shortage or unavailable in the U.S. labor market (think: an H-1B program that requires PERM-type recruitment).
Conclusion
Immigration hardliners are not immune to Musk’s powerful argument that the U.S. needs to always be the preferred destination for the next Elon Musk, Satya Nadella (CEO, Microsoft), or Sergey Brin (co-founder, Google) (or so many other innovators). Simply put: the U.S. economy thrives when foreign innovators make the U.S. their home.
The likeliest outcome of this back-and-forth between Musk and Trump’s anti-immigration hardliners is that:
- The Diversity Visa green card program will be ended, and its prize of 50,000 green cards will be shifted to the EB1 and EB2 categories (and potentially to the EB5 investor category to maintain the EB5 reserved visa categories free from backlogs).
- The H1B Skilled Worker program will be narrowed (instead of ended), skewing towards workers with U.S. Master’s or U.S. Ph.D. degrees, or critical skills.
This potential outcome would enable Musk and immigration hardliners to each claim victory.
It could, however, also lead to challenging situations. For example, current H1B workers who do not qualify under potential new rules may face difficulties in renewing their H1B visa (especially if the worker has not obtained sponsorship of a PERM Labor Certification or obtained an approved I-140 Immigrant Petition).
The immigration landscape is experiencing uncertainty because the new Trump Administration is likely to generate more changes to the U.S. immigration system than experienced in the last 30 years.
Donoso & Partners, a leading immigration law firm for entrepreneurs and investors, will continue to report on potential developments throughout 2025 in anticipation of future USCIS regulations and executive action by the in-coming President.