Texas H-1B Grant Ban Shuts Visa Employers Out of TDA Money

Texas Agriculture Commissioner Sid Miller says his department will stop awarding its grants to businesses that employ H-1B workers. The announcement names no program, no compliance process and no legal authority.

The Texas H-1B grant ban announced Oct. 28 by Agriculture Commissioner Sid Miller cuts businesses that employ H-1B visa holders out of grants run by the Texas Department of Agriculture (TDA). It applies to businesses seeking the department’s own grants, and the department says it took effect the day it was announced. Unlike Texas’s earlier H-1B restriction, which governs the state’s own hiring, this one is aimed at private employers.

Miller pitched the policy as taxpayer protection. “If a company wants taxpayer support, it should demonstrate a commitment to the people paying the bill,” he said in the department’s release, adding: “Texas workers should come first. Period.”

What the Texas H-1B grant ban covers, and what it leaves open

The release is thin on mechanics. It refers only to “eligible department-administered grants,” does not name a single program and says applicants must meet “new requirements” without describing them. Three things are carved out: programs TDA administers for independent boards or commissions that set their own eligibility rules, federal grant money that passes through the department, and state-funded loan programs TDA runs.

Everything a grant applicant would need to know is missing. The release does not say how a business proves it has no H-1B workers, whether a single H-1B employee anywhere on a company’s payroll disqualifies it, whether H-1B workers placed by a staffing contractor count, or what happens to grants already awarded.

The practical reach may also be narrower than the headline. The policy does not mention H-2A, the separate visa for seasonal farmworkers. H-1B is reserved for specialty occupations that generally require at least a bachelor’s degree, so the businesses most likely to be affected are those employing scientists, engineers, analysts or other degreed staff, which tends to mean larger operations rather than family farms.

A different target than Abbott’s H-1B freeze

Texas has restricted H-1B hiring before, but only as an employer. Gov. Greg Abbott’s Jan. 27 letter to state agency heads told agencies led by his appointees, along with public colleges and universities, to file no new H-1B petitions without written approval from the Texas Workforce Commission through May 31, 2027, and to report their H-1B use by March 27. Florida has taken a similar line with its public universities, where a pause on new H-1B hires recently forced the University of Florida to pull an H-1B filing.

Miller’s policy turns the state’s purse on private businesses instead. He framed it as a challenge to the governor, noting that Abbott “has publicly declared that taxpayer-funded employment should prioritize Texans” and adding that “now it’s time to turn that principle into action.” He also urged other statewide officials to review their grant and incentive programs.

The legal questions it invites

H-1B workers are in the country with federal approval. The employer files a labor condition application with the Labor Department promising to pay the required wage, and USCIS approves the petition.

When the Supreme Court upheld Arizona’s law pulling business licenses from employers who knowingly hire unauthorized workers in Chamber of Commerce v. Whiting (2011), it relied on a clause in federal law that expressly preserves state “licensing and similar laws” aimed at unauthorized employment. Miller’s policy runs the other way: it disadvantages businesses for employing workers the federal government has authorized. That clause does nothing for it, which gives a challenger an opening to argue the policy intrudes on a field Congress controls. Texas would likely answer that it is deciding how to spend its own money, and courts generally give governments more room as funders than as regulators.

Federal anti-discrimination law is a weaker tool for challengers. The citizenship-status provision of 8 U.S.C. 1324b protects citizens, green card holders, refugees and asylees, not H-1B workers, and a grant condition is not itself a hiring decision.

Then there is the clock. Miller lost the March 3 Republican primary to Nate Sheets, KWTX reported, and his term ends in January. Whether the policy survives depends on his successor.

What to watch

TDA program guidance spelling out how applicants certify compliance and how H-1B employment is defined.
Whether Abbott or other statewide officials adopt similar grant conditions, as Miller urged.
The Nov. 3 election for agriculture commissioner and the next commissioner’s position on the policy once sworn in.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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