The first few days of the Trump presidency have produced an extraordinary number of changes to our nation’s immigration laws. In recent days, the fate of the H-1B visa program has been added to the growing list of immigration programs that are the subject of renewed interest and concern. The White House appears to be considering a draft Executive Order dated January 23, 2017 titled “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.” This draft addresses all employment-based visa categories. Additionally, several pieces of legislation have been introduced in Congress addressing the H-1B program in particular.

DRAFT EXECUTIVE ORDER: PROPOSED CHANGES

The draft Executive Order lays the groundwork for many changes to the employment-based immigration system in the United States. Because the Executive Order is broadly focused on all employment-based immigration programs, only two sections specifically address the H-1B program.

The sections on H-1B visas direct agencies to:

  • Consider changes to the H-1B process to make it “more efficient and ensure that beneficiaries of the program are the best and the brightest”
  • Provide the President a report of the “actual or potential injury to U.S. workers caused, directly or indirectly, by work performed by nonimmigrant workers in the H-1B, L-1, and B-1 visa categories” within nine months of the signing of the Executive Order.

PENDING LEGISLATION IN THE HOUSE AND SENATE

In addition to the draft Executive Order, bills have been introduced in the House and Senate that seek reforms to the H-1B program. A House bill introduced by Rep. Zoe Lofgren (D-CA) has received a substantial amount of media attention. The most significant changes proposed by Rep. Zofgren are to reprioritize the allocation of H-1B visas, so that employers with the highest-paying jobs would be allocated visas first and then in descending order based on the rate of pay. It also sets a much higher target wage level for dependent companies’ petitions for H-1B workers, more than doubling the current target wage rate of $60,000.

A bipartisan bill aimed at visa “fraud and abuse” was introduced in the Senate on Inauguration Day. The bill explicitly bans the replacement of U.S. workers with H-1B visa holders and also reprioritizes allocations of H-1B visas, with a mix of priorities given to U.S. students with STEM degrees and high-paying jobs.

Other bills are circulating and may be introduced in the weeks and months to come.