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Executive Order Seeks Review of H-1B Visa Program but Makes Few Immediate Changes

Residency PaperworkThe future of the H-1B specialty worker visa program has been uncertain since the new presidential administration took over in January 2017. The White House formally addressed the program for the first time in an executive order (EO) issued in April. EO 13788 of April 18, 2017, 82 Fed. Reg. 18837 (Apr. 21, 2017). The EO, entitled “Buy American and Hire American,” directs the federal government to purchase products manufactured in the United States and to hire American workers whenever possible. It also directs certain cabinet departments to review immigration regulations, including the H-1B program, and possibly to revise its rules and guidance in order “to protect the interests of United States workers in the administration of our immigration system.” EO 13788 § 5(a), 82 Fed. Reg. 18838. It provides no specific guidelines with regard to the H-1B program, although the language of the EO suggests that the administration does not intend to eliminate the program entirely, as some have feared.

H-1B visas are available to workers in “specialty occupations.” 8 U.S.C. § 1101(a)(15)(H)(i)(b). This refers to an occupation that requires the “theoretical and practical application of a body of highly specialized knowledge,” as well as at least a bachelor’s degree or the equivalent in the relevant field of study. Id. at § 1184(i)(1). Additionally, the intended visa holder must have any and all required licensure for the job, if any, and must have either received the academic degree mentioned earlier or obtained enough on-the-job experience to equal the work required for a degree. Id. at § 1184(i)(2).

Both the employer and the prospective visa holder must meet eligibility criteria before the government will issue an H-1B visa. The employer must obtain a labor certification from the U.S. Department of Labor (DOL). Id. at § 1182(n)(1). This requires certifying to the DOL that the employer will pay a wage to the H-1B worker that is comparable to what it would pay to an American worker and provide the same general working conditions. The goal here is to prevent employers from driving down wages and other conditions of employment. The employer must also certify that the H-1B worker will not immediately “displace a United States worker.” Id. at § 1182(n)(1)(E).

The EO recently issued by the White House does not make any specific changes to the H-1B program, but the overall policy it espouses could lead to a substantial impact on the program. In addition to a general reform of immigration rules in furtherance of the overall “hire American” policy, the EO directs the heads of the Departments of State, Justice, Labor, and Homeland Security to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” EO 13788 § 5(b), 82 Fed. Reg. 18839. The impact of this is impossible to predict, but it could result in fewer work visas overall and fewer H-1B visas in particular. It could also increase the cost of the H-1B program for employers.

Immigration lawyer Samuel C. Berger represents immigrants living in Northern New Jersey and New York City, prospective immigrants who want to move to this area, and family members and employers of immigrants. To schedule a confidential consultation to see how our knowledgeable and experienced team can help you, contact us today online, at (201) 587-1500, or at (212) 380-8117.

More Blog Posts:

Individual H-1B Wage Complaint Does Not Authorize Government to Initiate Company-Wide Investigation, According to Judge, New Jersey Immigration Lawyer Blog, September 22, 2016

Employer’s Failure to Notify Federal Government of H-1B Employee’s Termination Results in Penalty of Nearly $183,000, New Jersey Immigration Lawyer Blog, August 11, 2016

Lawsuit Seeks Transparency Regarding Selection of H-1B Visas, New Jersey Immigration Lawyer Blog, June 9, 2016

Photo credit: Beatrice Murch [CC BY 2.0], via Flickr.