President Donald Trump signed an executive order on H-1B visas this month, ordering a review intended to eliminate abuses of the system.
Trump signed the executive order on April 18 at the headquarters of hand and power tool manufacturer Snap-on Inc. in Wisconsin. He said it will help American workers whose jobs are threatened by skilled immigrants. The order outlines a fundamental review of the system by agency heads.
Trump took aim at what he said are hiring abuses in a visa program heavily used by U.S. technology companies. He issued the order as part of his ‘America First’ campaign.
The H-1B visa program is one of the most important mechanisms companies use to bring skilled overseas workers to the United States. There is a cap of 65,000 visas issued every year and a 20,000 cap for master’s visas. Immigration authorities receive far more applications than visas are available and they go into a lottery system. In April, 236,000 H-1B visa applications were received.
Trump was critical of the H-1B visa system during the election campaign. In March, the Trump administration suspended the expediting of H-1B visas.The executive order is the first comprehensive announcement from the Trump administration about the fate of the H-1B program. However, the executive order is vague and leaves unanswered questions, according to commentators.
What the New Executive Order on H-1B Visas is Likely to Do
1. Force Companies to Pay More
Concerns that companies are using H-1B visas to hire cheap foreign workers who undercut the local workforce means the review is likely to up the wages employers must pay visa recipients.
The administration has indicated it will change the way the “prevailing wage” is worked out for H-1B visa calculations. It could start handing out visas for the highest-paid jobs and best-educated employees instead of giving work to any applicant who meets the basic requirements for the visa.
2. Crack Down on Outsourcing Firms Using Visas
The executive order is also intended to target outsourcing firms that apply for large numbers of H-1Bs to staff call centers. These firms are accused of bringing tech workers over from India on low wages for short time periods. Requiring firms to pay more could be a disincentive to the outsourcing firms.
3. Ending the Lottery
Trump has pledged to end the “random lottery” presently used to allocate the 85,000 H-1B visas every April and to replace it with a “merit-based” system.
4. Seek New Rules from Agencies to Stop Abuse of the System
The order directs U.S. agencies to propose rules that will prevent immigration fraud and abuse in the program.
What the New Executive Order on H-1B Visas Doesn’t Do
1. Provides a timetable for changes to the H-1B visa system
While agencies have been asked to come up with proposals, no timetable is set out in the order for the implementation of changes. However, the order says department heads should submit a report within 220 days of the date of the order and “shall include specific recommendations to strengthen implementation of Buy American Laws, including domestic procurement preference policies and programs.”
2. Set out a Mechanism for Change
Changes to the H-1B visa program require Congressional approval because the terms of the program are set out in the 1965 Immigration and Nationalization Act. The executive order does not contain any guidance about how changes would be implemented.
3. Provide Hard Figures
The executive order does not suggest a wage companies should pay skilled foreign workers or give guidance about the number of visas that will be issued in the future.
Notwithstanding the many unanswered questions, it’s clear the government’s direction on H-1B visas is a restrictive one. In these confusing times it makes sense to hire an experienced Austin business and immigration lawyer. Call us at (512) 474-4445 for a consultation.