Trump Executive Order Eyes H-1B Changes, But Will Need Congress

April 19, 2017

On Tuesday, President Trump signed an executive order designed to benefit American companies (by favoring them for government contracts) and American workers (by reducing competition from H-1B visa-holding foreign nationals). Unlike the legally-questionable travel bans signed by President Trump (currently subject to a variety of judicial holds), this executive order will have little immediate impact on the government’s immigration policies. Instead, it simply encourages various government agencies to review the H-1B program and to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” No timeline for this review’s completion is mentioned in the executive order, adding to the sense that this is a long-term project.

Proposed changes

In addition to cracking down on fraud and abuse, the administration also wants a thorough re-thinking of the H-1B visa program. Specifically, they seem focused on having H-1B visas awarded to the highest-skilled and highest-compensated employees. The current program only requires that the position pay at or above the ‘prevailing wage’ and that the position require at least a Bachelor’s degree in a specific field. The USCIS receives many, many more petitions for new H-1B visas than are allotted by the congressionally-mandated cap in a given year, a situation which is resolved by random lottery. The Trump administration apparently wishes to further restrict the H-1B requirements so that only high-paying jobs and/or jobs that require advanced degrees or skills qualify.

Whether or not such changes benefit American workers, American businesses, and the economy as a whole will depend greatly on the details, none of which are included in the executive order.

Changes will require legislation (meaning changes are not imminent)

The administration may well be able to crack down on abuse and fraud in a significant way without any new legislation, and it’s possible that their efforts will have significant effects on which companies use the H-1B program. However, any significant changes to the way the program works, or which jobs and applicants qualify, would require new legislation, or at the very least rules changes (which have to go through a formal review process). And as we’ve seen from recent legislative efforts, there is no guarantee that a new law could pass congress.

Conclusion: wait and see

Until concrete proposals emerge from the review process, we will continue to monitor the situation. In the meantime, given the legislative hurdles that must be cleared, H-1B visa holders and employers can take a ‘wait-and-see’ approach.

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