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ARE CHANGES COMING TO THE H-1B VISA?

4/19/17

By: Kenneth S. Levine

On April 18, 2017, President Trump signed an Executive Order entitled “Buy American and Hire American.” In the “Hire American” portion of the order, the administration has directed USDOL, USDOJ, USCIS, and USDOS to review the current laws governing the H-1B program and develop and suggest changes that afford priority to the most skilled and highest paid positions. The current H-1B visa program allows for the issuance of an H-1B visa upon a showing that the sponsored position is a professional position requiring a Bachelors degree and that the offered salary meets the current USDOL prevailing wage.

As a practical matter, this Executive Order does not confer any changes whatsoever to the H-1B visa program. The same regulations that were in effect prior to the issuance of the order remain in effect today.  Dramatic alterations to the H-1B program would have to be accomplished by way of formal bills introduced, debated and approved by Congress, and then signed into law by the President. One such bill was introduced by Senators Grassley and Durbin in January 2017 which aims to reform H-1B as well as L-1 visas. This bill remains in a legislative committee and has yet to advance.

For more modest changes to the H-1B visa program, the Trump administration would need to undergo the formal rulemaking process pursuant to the Administrative Procedures Act (APA). The rulemaking process involves the formal introduction of the proposed rule, a comment period to allow for input by interested stakeholders, followed by the issuance of the final rule in the Federal Register. The formal rulemaking process is arduous and quite lengthy. It is not anticipated that any new rules or regulations in the H-1B program would be fully implemented for at least 2 years.

While this Executive Order does not have any immediate impact on the ability of U.S. employers to sponsor foreign nationals for H-1B visas, it is abundantly clear that the administration will employ a decidedly higher level of scrutiny in all H-1B filings. The order further addresses the issue of fraud and abuse by directing that the above federal agencies scrutinize all visa programs to develop more reliable indicators of whether fraud or abuse is being perpetrated in a visa application. Therefore, it is incumbent upon U.S. employers and their immigration legal counsel to check, double check and triple check that H-1B petitions are thoroughly prepared and strictly adhere to the USCIS and USDOL regulations.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].