Newest Executive Order Targets H-1B Program; Other H-1B News

On April 18, President Trump signed yet another Executive Order, “Buy American and Hire American,” in which he directs various agencies to review the current laws governing the H-1B program. President Trump also indicated he was directing federal agencies to review all visa programs and take prompt action to crack down on fraud and abuse in order to protect U.S. workers. Even before the Executive Order was announced, several agencies marked the beginning of the current H-1B filing period by announcing that they would investigate and prosecute vigorously companies that don’t comply with the regulations. First and most significantly, USCIS issued a statement detailing its increased efforts to ferret out fraud in the visa program with additional site visits to H-1B dependent employers, contractors, and small companies that have limited business. It also released a memo that said “computer programmers” would no longer be considered automatically an H-1B “specialty occupation” absent additional information. And the Department of Justice (DOJ) Immigrant and Employee Rights Section warned employers petitioning for H-1B visas to not discriminate against U.S. workers.

While the Executive Order will have no immediate impact on H-1Bs because significant change to the program would require legislative action or rulemaking, it is another pronouncement from The White House that creates extreme uncertainty for noncitizens and for U.S. employers who hire foreign nationals. The H-1B program, enacted in its current form in 1990, certainly needs review and an update but the visa program generally does not act as a mechanism to replace American workers or depress wages. And, the system is not riddled with abuse. On the contrary, U.S. businesses use the H-1B to gain access to the sought-after skills of foreign professionals to complement the U.S. workforce, paying fees and costs that are significant. Studies show that foreign professional personnel greatly benefit U.S. businesses, U.S. workers, and the economy.

Meanwhile, on April 17, USCIS announced that it received 199,000 H-1B petitions during the filing period, a decrease of more than 15 percent from the 236,000 petitions received last year. In this atmosphere of uncertainty, it is not surprising that employers are reluctant to file cases on behalf of needed employees for fear that their cases will be denied or that later they will face penalties from an aggressive agency looking to find abuse. Those employers who filed H-1B cases this year can expect to start to receive receipt notices for cases randomly selected in the lottery. Rejected cases will be returned later in the spring.