Yesterday, President Trump issued an Executive Order impacting business immigration specifically, the H-1b visa. The order makes NO immediate changes to the H-1b program but, changes they are a coming. The EO essentially makes two (2) directives. First, it orders all agencies that touch the H-1b program to review all of its policies and regulations and write new policies and regulations to further protect US workers and prevent fraud and abuse in the H-1b program. Long-term, this may result in new proposed regulations which will be the subject of notice and comment. In the next few months, this may mean more policy memos, such as the memo released in late March which changed 20 years of policy and declared that many computer programmer positions would no longer be considered H-1b level occupations. As we saw with the introduction of the Neufeld policy memo in 2010, policy memos can have a major impact on a visa category. Immediately, I think we will see an increase in H-1b site visits; DOL LCA audits; 221(g) and administrative processing by US Consulates at visa stamping; RFE’s; use of the NOID in place of the RFE; NOIR issuances; and, denials. The President is proclaiming that H-1b visas harm US workers and there is rampant fraud and abuse and by his comments and this EO, he is directing his administration to do everything in its power to right this wrong. If we thought the “culture of NO” which was pervasive during the last Administration was strong, we now expect to see the “culture of HELL NO”
Secondly, the EO requests that the agencies involved devise a new scheme to replace the H-1b lottery and award the limited pool of H-1b visas to the “most-skilled or highest paid”. The assumption being made in this EO is that the majority of H-1b visas are awarded to low paid workers. New grads from US schools make up at least 20,000 of the H-1b lottery pool and by many estimates, at least a 3rd of the lottery winners and new grads are appropriately paid at the low end of the wage scale. There are a number of problems inherent in any scheme that awards H-1b visas only to the highest paid eg. rural areas will be at a major disadvantage over large cities; some occupations such as healthcare and research will not be able to compete with even the low end salaries paid to IT and engineers; and, large companies will have an advantage over start-ups.

Contrary to the “Buy American” provisions in this EO, there were no timetables set for the immigration related provisions.

The reaction to the President’s EO came quickly with most declaring this is nothing more than chest thumping and a horrible solution in search of a problem. One prominent immigration attorney quoted MacBeth (surely you know the line) and I must admit I responded to an email yesterday about this subject by sending back a pic of a person blowing hot air however, as I outlined above, this will have ramifications. There is no question that we need immigration reform but, it needs to be legislative in origin and needs to be based upon facts and not mere anecdotes tainted by either fear or hatred of immigrants.