The White House recently issued several Executive Orders that limit the entry of certain individuals into the United States, and updates to such Executive Orders are being released on an almost daily basis. As the “travel ban” issues continue to be discussed, details of proposed Executive Orders on business immigration have been leaked to the public. Upon first review of the draft Executive Orders, along with a few bills recently introduced in Congress, the proposals could have a major impact on the employment visa process, including temporary work authorization and permanent resident status (green cards) for foreign national employees.
Leaked White House Executive Orders
The White House is supposedly working on Executive Orders (EOs) titled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs,” and “Executive Order – Ending Unconstitutional, Executive Amnesties”. Although drafts of these EOs have been leaked, they are likely still works in progress and provisions could change before being officially released and signed by the President. It is important to review some of the provisions as employers begin making plans to sponsor individuals and file H-1B petitions in the upcoming H-1B cap lottery the beginning of April. It also may be helpful for other areas of business planning to understand what changes may be introduced and when such changes could be implemented.
Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs
In the draft EO “protecting American jobs and workers,” the White House focuses on the B-1, E-2, E-Verify, H-1B, H-2A, J-1, and L-1 programs specifically and issues orders for the heads of various agencies involved with immigration to take the following actions:
Within 30 days of the date of the EO:
- Reform the Visa Bulletin and how immigrant visas (“green cards”) are made available, as well as propose new regulations to change the way that I-485 applications to adjust status to U.S. permanent resident are filed in order to “reduce inefficiencies in the way immigrant visas are allocated”;
- Propose new regulations to reform the E-2 treaty investor visa program for foreign entrepreneurs so that the activities permitted for such individuals conform with current law.
Within 90 days of the EO:
- Review all regulations that permit foreign nationals to work in the United States in order to determine if any such regulations violate current immigration law;
- Provide the President with options to ensure the efficient processing of H-2A nonimmigrant agricultural visas;
- Provide the President with a list of options to incentivize more employers to use the E-Verify program which is an online program to verify employment authorization used in conjunction with the I-9 process. The President also orders that such options include immigration-related benefits based on participation in the E-Verify program.
Within 180 days of the EO:
- Begin site visits/audits of worksites in which L-1 workers are employed, including third-party worksites at which L-1 workers have been placed by U.S. employers that have sponsored such individuals for work authorization in the U.S.
Within One year of the EO:
- Establish a commission or advisory committee to
- analyze the current immigration policies and their impact on U.S. society, the economy, U.S. workers, and the foreign policy and national security interests of the United States; and,
- Provide recommendations for making U.S. immigration policy “better”.
Within 18 months of the EO:
- Investigate and provide a report on the results of such investigation on the damage caused to U.S. workers by the employment of foreign workers admitted under nonimmigrant work visa programs.
- An initial report must be presented to the President within nine months of the EO detailing the damage to U.S. workers specifically caused by the H-1B, L-1 and B-1 visa programs.
At Any Time:
- Propose new regulations regarding parole policies that would essentially eliminate the current parole policies for Deferred Action for Childhood Arrivals (DACA). DACA, created via an Executive Order by President Obama in June 2012, provides an avenue for children brought to the U.S. without documentation or who remained in the U.S. following expiration of valid documentation to obtain temporary work authorization during the period in which their deportation from the U.S. is deferred. The EO would also immediately terminate the current DACA program;
- Propose new regulations to reform the business visa programs in order to “better protect” U.S. and foreign workers affected by such programs. This most likely refers to the H-1B and L-1 programs;
- Consider ways to make the process for allocating H-1B visa more efficient and ensure that the beneficiaries of the H-1B program are the “best and the brightest” – basically improve the H-1B lottery allocation process;
- Propose regulations that will reform the J-1 Exchange Visitor Summer Work Travel Program in order to “improve protections of U.S. workers and participating foreign workers;”
- Propose new regulations that will reform the J-1 and F-1 work options. This is directed at the Curricular Practical Training (CPT), Optional Practical Training (OPT) and Employment Authorization Documents (EADs) typically granted for recent college graduates so that they make work as interns for a period of time depending on the program (i.e. one to three years); and,
- Propose new regulations to clarify and define permissible activities for individuals admitted pursuant to business/visitor (B-1/B-2) visas in order to ensure that the prohibition on the performance of skilled or unskilled labor in such status is enforced.
Executive Order – Ending Unconstitutional, Executive Amnesties
The EO to end “unconstitutional, executive amnesties” will rescind DACA and ensure that any EAD issued pursuant to the DACA program is not extended but shall remain valid until the date of expiration of the current EAD. This EO also prohibits the issuance of advance parole to any DACA recipients which means that such individuals may not travel internationally.
The Senate and House of Representatives have proposed bills that would affect the most popular work authorization visas – the H-1B and the L-1. Most proposals are bills that were issued in previous Congressional sessions. The following are the most noteworthy:
- The High-Skilled Integrity and Fairness Act of 2017 would increase the H-1B prevailing wage requirements by abolishing the Level 1 wage category and replace the H-1B lottery system with a process that awards new H-1B visas to the highest paid employees. In addition, it would replace the current permanent resident (green card) allocation system in which foreign national employees born in China, Mexico, India and the Philippines wait up to ten years or longer for a green card with a “first-come, first-serve” system. This bill would also increase the wage at which an H-1B dependent employer would be exempt from the recruitment requirement to $130,000 from $60,000 and also eliminate the Master’s degree exemption. In addition, 20% of the 85,000 H-1B visas each fiscal year would be reserved for start-up companies that employ less than 50 employees. Furthermore, employees would be permitted to use experience gained while working for the same employer that sponsors such worker for permanent resident status based on a PERM labor certification application.
- The Protect and Grow America Jobs Act would increase the H-1B dependent exemption to $100,000 from the current $60,000 and discontinue the Master’s degree exemption form the H-1B dependency. This would mean that employers with at least 15% of their workforce employed pursuant to H-1B status would be required to advertise for the available positons and prove that there are no U.S. workers available for the positions when the salary offered is less than $100,000.
- The H-1B and L-1 Reform Act of 2017 would replace the existing H-1B lottery process with a system that would prioritize H-1B petitions based on higher salaries and non H-1B dependent employers. It also would increase the number of audits/investigations conducted by the U.S. Department of Labor of H-1B employers. In addition, a prevailing wage requirement similar to the H-1B program would be added to the L-1B specialized knowledge worker classification and add a yearly cap for such L-1B visas.
- The Fairness for High Skilled Immigrants Act would replace the current permanent resident allocation system to be “first-come, first-serve” instead of the current system.
What is the Impact on Businesses?
Most of the EOs are rather vague and are still possibly evolving before being signed by the President. If the EOs are signed, they may likely have the most impact on companies that hire temporary workers in the H-1B and L-1 visa programs. The EO is primarily focused on high skilled workers. The visa programs that facilitate the hiring of lesser-skilled, low-wage workers for agricultural work on farms, construction jobs, etc., (such as the H-2A and H-2B visa programs) will likely not be impacted by the EO. We also must keep in mind that the President signed the “Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs” on January 30, 2017. This EO states that whenever an executive department or agency proposes a new regulation, it will be required to identify at least two existing regulations that should be repealed. It further states that the total incremental cost of all new regulations during FY2017 “shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director).”
The draft EO instructs government agencies to recommend new regulations for programs such as the H-1B and L-1. Such a process of amending the regulations could take months, if not years, for the new requirements to take effect. One proposal is to “consider ways to make the process for allocating H-1B visas more efficient and ensure that beneficiaries of the program are the best and brightest” which could be beneficial to employers that pay higher wages, as opposed to companies that do IT consulting and outsourcing. Legislation would be required in order to allocate H-1B visas based on the offer to pay higher wages, which would take time to wind through Congressional channels.
For companies that hire foreign students (F-1) based on the Optional Practical Training (OPT) program that provides for work authorization following completion of a degree program in the U.S., the EO does not provide much information as to how such a program may be changed or what part of the program may be targeted by the Trump administration. The OPT program, which was created by administrative regulations, is susceptible to having changes implemented that do not require Congressional approval.
Changing and/or deregulating current regulations will not be “quick and easy.” There are three options in this regard: (1) The President may direct Congress to pass a law overturning potential regulations which would require a filibuster proof majority in the Senate; (2) The President can hope that judges overturn the regulations, which may or may not happen regardless of who is in the White House; and (3) The President may use the regulatory process to reverse previous regulations which will take years to accomplish and the courts such efforts.
While some proposals could affect the H-1B cap process this coming April, what changes may occur is yet to be seen. More likely than not, with the Executive Order that froze federal government hiring, it is likely that adjudication times for all visa petitions and applications will increase.