Immigration lawyers tell tech workers on visas to get back to the US before Trump takes office. 'A storm is coming.'

A travel ban 2.0 could limit access for the tech talent pool

In the first week of his first term, Trump signed an executive order restricting travel from seven countries with large Muslim populations, virtually blocking immigration from those nations. It also prevented professionals from traveling out of the country for work or personal reasons because they feared they would be unable to return.

In a September speech prior to the election, Trump said he would reinstate his "famous travel ban" and expand it to prevent refugees from Gaza from entering the country.

The last travel ban sparked outcries from tech firms that rely on foreigners with special expertise to fill their ranks and help shape their technologies. Hundreds of executives and employees such as Sam Altman and Sergey Brin converged on San Francisco International Airport in protest, while Box CEO Aaron Levie and the founders of Lyft pledged their support to the American Civil Liberties Union, which filed a lawsuit seeking to stop the order.

The travel ban faced a series of challenges in the lower courts and didn't take full effect until the Supreme Court upheld the order more than a year after Trump signed it.

"I think its possible that Trump may attempt to impose travel bans from certain countries just as he did when he initially tried to implement travel restrictions," said Jason Finkelman, who's based in Austin. "While I think travel bans will likely face challenges in the courts it may lead to issues of US employers being restricted from hiring and retaining the foreign talent they need for their operations."

Elizabeth Goss, who runs her own law practice in Boston, and Justin Parsons, a partner at Erickson Immigration Group's office in Arlington, Virginia, said they believed a travel ban 2.0 would affect different countries this time around, based on this administration's priorities.

"The wildcard for me," said Parsons, "is what happens to China." The president-elect has vowed to enact higher tariffs on Chinese goods, in an effort to hobble the world's second-largest economy. Parsons has asked himself if Trump would ban travel from China to further these efforts.

Trump could decrease access to a commonly used visa type by tech companies

The tech sector is the biggest beneficiary of the H-1B visa, which allows employers to fill specialty roles with highly educated foreign workers. Last year, more than half of these visas went to workers in computer-related roles, according to data from the US Citizenship and Immigration Services.

During Trump's first term, government data shows that denial rates for new employees and requests for further evidence of eligibility surged. In 2020, the Trump administration temporarily paused the issuance of new green cards and many work visa types, arguing that this would protect American jobs during a pandemic decline in employment.

The Biden administration has moved to reverse some of these policies and facilitate the processing of work-related visas. In December, the White House published new regulations that allow the immigration agency to process applications more quickly for most individuals who had previously been approved for an H-1B visa.

Jason Finkelman said the new rules "give predictability to employers and foreign nationals on the extensions of their visa petitions when there has been no change in the job duties or the employer." He added that it's plausible Trump can withdraw the regulations once he takes office, however.

Elizabeth Goss offered a more optimistic outlook. She suggested that if Elon Musk has Trump's ear, he might be able to persuade the president to leave the program untouched or even expand the number of visas issued, though such a move hasn't been made since President Bill Clinton raised the limit at the top of the dot-com bubble.

Canadians could be turned away

Historically, Canadians have had access to temporary work visa types, the L-1 and the TN, which allowed them to move across the border with less friction. However, according to Justin Parsons, they could face new headwinds under Trump.

Tech companies like Google, Microsoft, and Apple have relied heavily on the L-1 visa to transfer an executive or manager from one of their foreign offices to one of their domestic offices. Canadians have been able to apply for this visa at an international airport or border station without having to file a petition with the US Citizenship and Immigration Services, a far more cumbersome process.

In 2017, under the Trump administration, some border agents began refusing to process or renew work visas for Canadians already working in the country, Parsons said. The border agents would challenge their eligibility over what Parsons described as arbitrary reasons, or direct them to the immigration agency. This delayed workers who were traveling home from returning.

At the time, Parsons also observed Canadian clients on the TN visa — a temporary work visa for Canadians and Mexicans created under the North American Free Trade Agreement — come under increased scrutiny at the border.

Parsons expressed concern for Canadians that the probing measures might be reintroduced and potentially intensified under Trump's second term.