Think Immigration: Could Someone Tell Governor Abbott He’s Shooting Texas in the Foot?

Without any grace period for implementation, investigation results, or opportunity for prior comment by H-1B employers in the State of Texas, Governor Abbott issued a letter on January 27, 2026 addressed to all state agency heads stating that, “The economy of Texas should work for the benefit of Texas workers and Texas employers.” Certainly, that is an appropriate goal. The letter proceeds to direct all state agencies with a gubernatorially appointed head and public institutions of higher education to end immediately the filing of new H-1B nonimmigrant visa petitions.

Governor Abbott asserts in his letter that the federal nonimmigrant H-1B program has been exploited by bad actors, who have failed to make good-faith efforts to recruit qualified U.S. workers before seeking to use foreign labor. Of course, there is no mention or recognition that the H-1B federal nonimmigrant visa program does not include a test of the Texas or U.S. labor market. Labor market tests are included usually in seeking pathways to U.S. legal permanent residence (aka “green cards”). The governor also outlines that state government must lead by example and ensure that employment opportunities, particularly “those funded by taxpayer dollars,” must be filled by “Texans” first.

The pause of the filing or initiation of any “new” H-1B petition applies to any state agency controlled by a gubernatorially appointed head or a public institution of higher education for a period lasting from January 27, 2026 to March 27, 2027, the end of the Texas Legislature’s 90th Regular Session. The potential initiation or filing of any H-1B petition (Form I-129) may be authorized by yet to be developed standards via written authorization of the Texas Workforce Commission (TWC).

What does this pause fail to address?

1. The reliance by Texas medical education institutions on foreign physicians to fill critical shortages in healthcare in rural areas of the state as well as in Health Professional Shortage Areas (HPSAs) and Medically Underserved Areas (MUAs).
2. The reliance by Texas universities on foreign scholars, educators, and researchers. While K-12 public schools are apparently not included in the pause, The Texas Tribune reported in 2022 that Texas ranked as one of the worst states for teacher retirement and that Texas, while producing teachers, was losing them at a high rate.
3. The federal government’s H-1B visa process, which involves attestations and compliance with federal wage requirements (i.e., higher of the actual or prevailing wage), working conditions, as well as public notices and recordkeeping requirements but not a formal labor market test as required for the normal pathway to permanent residence (“green card). The H-1B process is also regulated and monitored by the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS) as to nonimmigrant visa petitions filed with U.S. Citizenship and Immigration Services (USCIS).
4. Employers are not able to prefer “Texans” first (I’m honestly not sure of the definition for that term) under federal labor laws and regulations. Federal law does not allow employers to engage in citizenship or national origin discrimination, unfair documentary practices during the employment eligibility verification process, or retaliation or intimidation for filing charges with or cooperating with an investigation of the Immigrant and Employee Rights (IER) section of the Civil Rights Division (CRD) of the U.S. Department of Justice (DOJ). Those individuals that are considered work authorized and protected from national origin discrimination are: U.S. citizens (USCs), legal permanent residents (LPRs), and foreign nationals authorized to work in the U.S., including refugees and asylees. Title VII of the Civil Rights Act of 1964 protects employees or applicants from discrimination based on their national origin, including Americans.
5. Employers are required to determine the work eligibility of new hires using the Form I-9 within three business days of the date of hire. Texas has not imposed E-Verify upon private employers to reduce their potential exposure to fraudulent claims by new hires to legal work eligibility.

It is relevant to remember that the two pre-hire questions that have been accepted by the DOJ for use by employers in their recruitment efforts include:

1. Are you legally authorized to work in the United States? Yes ___ No ___
2. Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)? Yes __No ___

While employers are not mandated by federal law to sponsor H-1B nonimmigrants, these questions do not facilitate any way to identify a Texan as an employment applicant.

So, during the Texas pause in place through 2027, Texas universities will be severely hampered in the current global race for highly talented educators and researchers as well as for physicians at its medical schools to address critical shortages of medical care in underserved communities in the state. We will hope that the Texas Workforce Commission will issue guidelines quickly for exemptions from this pause to address the healthcare needs of Texas families and the competitiveness of Texas universities. In the meantime, it is obvious that Texas, or at least its governor, is not always first in clearly assessing the reasons for the state’s use of the H-1B program. H-1B visa holders complement native born workers, they add to our shared prosperity. Texas will be losing out, not coming first.

*****

While this post focuses on my home-state of Texas, this sort of effort is not confined there. Florida recently moved similarly and Oklahoma and South Carolina are considering legislation in the same vein.