On April 18, 2017, President Trump signed an Executive Order (EO) entitled "Buy American and Hire American," which addresses the H-1B visa program, among other topics.
Increased Enforcement; New Regulations and Guidance Forthcoming
The EO primarily sets policy looking forward, directing the Departments of State, Labor, Homeland Security, and Justice to propose new regulations and issue new guidance to protect U.S. workers, with a specific focus on the prevention of immigration fraud or abuse.
Allocation of New H-1B Visas
The EO also requires these agencies to propose reforms that would allocate H-1B visas to the "most-skilled or highest-paid" foreign nationals. Currently, allocation of new H-1B visas is performed by random lottery when more petitions are received than visas available. 85,000 new H-1B visas are available each year for foreign nationals to serve U.S. companies in "specialty occupations," meaning that a minimum of a bachelor's degree in a specific field related to the position offered is required. 20,000 of these visas are reserved for holders of U.S. advanced degrees (master's degrees or higher). The EO neither changes the number of visas available, nor the legal requirements to qualify, which are governed by statute.
For FY2018, U.S. Citizenship and Immigration Services (USCIS) has announced that 199,000 H-1B petitions were received during the first five business days of April 2017, and that it has completed the random lottery to determine which 85,000 petitions will be processed. Any potential change to how H-1B visas are distributed will have to come in future fiscal years because the allocation of H-1B visa numbers for FY2018 has already been performed.
What Might Happen First?
While the EO itself does not make any specific changes to the enforcement of the law, we anticipate that changes will be forthcoming from the executive branch. Issuance of new regulations requires providing an opportunity for public notice and comment; however, issuance of "guidance" as referenced in the EO does not provide such opportunity. Therefore, new agency guidance may come first. We anticipate that the immediate focus of the executive branch will be to redouble its anti-fraud efforts, including increased employer site visits. USCIS will likely also scrutinize H-1B petitions more closely.
This client alert is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have any questions regarding this update, or for more information about this topic, please contact any of the attorneys in our Business Immigration practice group, or the attorney with whom you normally consult.