• New Executive Order Calls for H-1B Reforms and Increased Enforcement
  • May 11, 2017
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • The Trump Administration is planning to increase restrictions and heighten scrutiny of the H-1B program, according to a new “Buy American and Hire American” executive order signed by President Trump today. Though the executive order will not have an immediate impact on the H-1B or other employment-based immigration programs, it initiates a wide-ranging administrative review that could lead to new regulations and policy.

    The executive order directs the Departments of Labor, Homeland Security, Justice and State to propose revisions to employment-based immigration program rules and guidance with the goal of protecting the economic interests of U.S. workers. The order does not provide specifics, but indicates that the agencies will focus on increasing H-1B wage minimums in an effort to promote the hiring of U.S. workers over foreign workers. This is in line with new guidelines from U.S. Citizenship and Immigration Services indicating that positions with entry-level wages may be ineligible for the H-1B program.

    The immigration agencies are directed to recommend ways to replace the H-1B cap lottery with an allocation system that gives priority to foreign nationals who have earned advanced degrees or are paid higher wages. Such changes would likely require legislation; several bills now pending in Congress propose similar priority systems for H-1B visa allocation.

    The Administration also announced its intention to focus on eradicating immigration fraud and abuse and promoting the integrity of the U.S. immigration system. This is consistent with recent enforcement warnings from the Departments of Labor, Justice, State and Homeland Security, issued to coincide with the opening of the FY 2018 H-1B cap filing season. The announcements signal that the agencies will coordinate more closely on compliance and enforcement in employment-based immigration programs generally, which is likely to trigger more worksite audits and investigations.

    At a press conference held late Monday, administration officials offered additional details, including an indication that the immigration agencies will pursue higher H-1B filing fees.

    What This Means for Employers

    Administration officials have characterized the executive order as the first step in a transition to a more merit-based immigration system - a concept that President Trump addressed during his campaign and address to a joint session. Broad-based changes to the H-1B program and other employer-sponsored immigration programs would require legislation, while new regulations would be subject to federal rulemaking - a process that typically takes several months or more. Agency guidance can be issued and implemented more quickly. Fragomen is closely following legislative, regulatory and policy developments, and will provide further updates as developments occur.

    The executive order also reiterates the Administration’s determination to increase immigration enforcement under existing rules. It is therefore critical that employers have a comprehensive immigration compliance program in place.