Business and Legal Insights

On April 17, 2017 the President signed a new Executive Order that directs federal agencies to review employment immigration laws to promote “Hire American” policies.  The order makes no immediate changes to work visa programs but tells the Departments of Labor, Justice, Homeland Security and State to study existing laws and procedures and recommend changes.  The Order’s most likely impact will be on the H-1B visa programs.

The H-1B visa program authorizes the temporary employment of qualified individuals who are not otherwise authorized to work in the U.S.  The H-1B program grants 65,000 work visas a year to foreigners, with 20,000 more visas granted to foreigners with advanced degrees and an unlimited number of extra visas available for universities, teaching hospitals and other nonprofit organizations. The program is aimed at highly skilled workers, and most of the visas are awarded to technology companies, although other specialty industries such as fashion also use the visas.

With respect to the H-1B program, the Order states that:

in order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

Because the Order makes no immediate changes to the H-1B visa program, and instead only requires that the various federal agencies review their current policies, the exact impact of the Order is unknown.  That said, the Department of Labor (“DOL”) has issued a press release stating that it will enact greater protections for U.S. workers by “providing greater transparency and oversight” to the issuance of H-1B visas.  Specifically, the DOL states that it will protect American workers by:

• Rigorously using all of its existing authority to initiate investigations of H-1B program violators. This effort to protect U.S. workers will also involve greater coordination with other federal agencies, including the departments of Homeland Security and Justice for additional investigation and, if necessary, prosecution.

• Considering changes to the Labor Condition Application for future application cycles. The Labor Condition Application, which is a required part of the H-1B visa application process, may be updated to provide greater transparency for agency personnel, U.S. workers and the general public. 

• Continuing to engage stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes.

At this time, employers who rely on the H-1B visa program for staffing will want to pay close attention to the findings and proposed changes submitted by the various federal agencies in response to the April 17 Executive Order.