United States: New Executive Order signed, calling for review of the H-1B visa program

Posted by Immigration Law Team|US Immigration
Apr 17
20


In brief

President Donald Trump signed an Executive Order on April 18, 2017 with a strong message to federal agencies to review protections for American-made products and American workers. This message echoes that which he stated throughout his campaign. The Order, entitled “Buy American and Hire American,” calls for greater limits on visas issued to foreign skilled workers and advises federal agencies to produce preliminary reports to propose improvements to the H-1B visa program. Most notably, the President seeks to crackdown on fraud and abuse within the H-1B program, to strictly enforce existing H-1B rules, and to propose changes to the current H-1B requirements such that the highest skilled and the highest paid applicants are favored for visa selection.

Note: No changes in H-1B policy or regulations have taken effect. The Executive Order is a preliminary step calling only for a review of the existing regulations and policies. Extensive changes to the H-1B program, such as those proposed, can only be implemented by an act of Congress.

Background

The H-1B program allows US employers to temporarily hire highly skilled foreign workers in specialty occupations, generally requiring the minimum of a bachelor’s degree. Built-in protections in the H-1B program, such as wage and educational mandates, are meant to protect US labor while encouraging the flow of foreign ingenuity and expertise into the US. However, fraud and abuse within the H-1B program has raised concerns that US employers are replacing American workers with low-wage foreign workers, contrary to the spirit of the H-1B program. This is an issue which has drawn much attention in recent years, and earlier this month, the Departments of Justice, Labor, and Homeland Security announced measures to deter and detect H-1B visa fraud and abuse.

Impact

In an effort to curb fraud and abuse in the H-1B program, the Executive Order calls on the Departments of Justice, Labor, Homeland Security, and State to take the following actions:

– Rigorously enforce and administer existing immigration laws of the United States

– Propose new rules and issue new guidance to protect the interests of United States workers, including the prevention of fraud and abuse, and

– Suggest reforms to the H-1B program to ensure the H-1B visas are awarded to the most-skilled or highest-paid foreign workers.

– The executive order is not expected to impact this year’s H-1B cap lottery.

Recommendations

Employers with H-1B employees should reach out to immigration counsel to review internal procedures and ensure compliance with all H-1B rules and regulations. Employers should continue to maintain close contact with immigration counsel should these objectives become implemented through agency and congressional action.

PwC Law continues to monitor these developments and will be sure to provide updates as changes occur.

For more information on the H-1B category and the lottery selection process, please contact a member of our team.


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