Draft Executive Order Discusses Potential Changes to the H-1B Program and Other Employment-Based Visa Categories

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Following President Trump’s controversial Executive Order banning refugees and travelers from seven predominantly Muslim countries, another unsigned, draft Executive Order has been circulating through the public, further unsettling U.S. employers who rely on foreign national employees.

The draft proposal titled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” states the following:

Our country’s immigration policies should be designed and implemented to serve, first and foremost, the U.S. national interest. In particular, visa programs for foreign workers … should be administered in a manner that protects the civil rights of American workers and current lawful residents, and that prioritizes the protection of American workers — our forgotten working people — and the jobs they hold.

The draft calls for analysis and review of the H-1B, L-1, H-2A, E-2, B-1 and practical training programs for F-1 students, amongst other categories. The order also calls for more transparency around visa programs by publishing statistics on who uses the programs, and for DHS to establish a commission that will analyze current immigration regulations and recommend changes towards a more merit-based system. 

The Trump administration has not responded to request for comment on the draft, but the proposal is consistent with the President’s public campaign promises related to immigration.

What specific changes will occur?

The draft does not lay out specific changes or detailed modifications to employment-based categories. Rather, it primarily calls for a review of current regulations, and for agencies to “propose for notice and comment a regulation (or make changes to policy or operations, as appropriate) to restore the integrity of employment-based nonimmigrant worker programs and better protect U.S. and foreign workers affected by those programs.” 

The Order could affect a number of visa programs, but at the current time, it is unclear how immediate these changes would be. However, many professionals in the science, technology, engineering and medical (“STEM”) fields agree that changes to policies restraining the flow of technical and professional talent would inhibit these U.S. employers to adequately staff research and development efforts. 

For instance, H-1B visas are commonly used by STEM employers to recruit highly-skilled foreign workers when they can’t find domestic talent to fill certain positions in the U.S. These industries are traditionally open to changes that have been proposed by members of Congress to better enforce the program and to increase limits on the number of H-1B visas issued each year.

However, in recent years, there have been allegations that the H-1B program has been abused to bring in cheaper workers from overseas to fill jobs that would otherwise go to an American. In fact, research indicates that the top recipients of H-1B visas each year are sponsored by third-party outsourcers, primarily from India, who then place foreign nationals at U.S. worksites. These companies contend that they help keep jobs in the U.S., and that they help corporations remain competitive by handling their technology operations with specialized staff. On the other hand, research does show that American companies pay higher wages to their direct employees, suggesting that they’re going after true, highly-skilled employees while outsourcers recruit less expensive talent.

What does this mean for our clients?

At this time, it is uncertain how much force the Executive Order would have if signed by President Trump. Currently, Congress is also working on visa reforms, and both parties will have to cooperate to pass new laws. 

Zoe Lofgren, a Democratic congresswoman from California, just introduced a new bill last week that would tighten requirements for the H-1B program. The legislation would “refocus [it] to its original intent – to seek out and find the best and brightest from around the world, and to supplement the U.S. workforce with talented, highly-paid and highly-skilled workers,” Logfren said in a statement.

Companies see skilled worker visas as a signature policy issue they have fought to protect and expand. If the Trump administration takes a severe approach to immigration and severely restricts employment-based visas, companies may be forced to move offshore – the exact opposite of what the Trump administration wants to see.

Berardi Immigration Law remains optimistic; as always, we will continue to monitor the situation and prepare our clients for any future immigration changes. 

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