Trump Executive Order on H1b impact 

By Srinivas Ramineni (Managing attorney of Ramineni Law Associates.)

President Trump may sign an Executive Order (‘EO”) soon that will have far-reaching consequences for Students and most nonimmigrant workers. On January 23, 2017, a proposed EO was leaked entitled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.” Specifically, the EO directs the Secretary of Homeland Security to evaluate various existing regulations covering F-1 (OPT), L-1 and H-1B programs and rescind any of these regulations which are found to be in violation of immigration laws or “otherwise not in the national interest.”

First, we are deeply concerned that the President should consider any of the current regulations as in violation of immigration laws. An accusation of such nature would delegitimize the Department of Homeland Security (“DHS”) itself. The accusation that the DHS has, currently in place, regulations in violation of this nation’s immigration laws is unfathomable. It also establishes the mindset of the current administration, that, somehow, the current DHS is operating under illegal regulations. Second, by giving bureaucrats the authority to randomly rescind any regulations if they were to consider them as “not in the national interest,” at their discretion, is nothing, but, giving dictatorial authority to a government agency. Who is to judge a certain regulation is “not in the national interest” and what are the operating boundaries of a nebulous concept such as “not in the national interest?” We have to be very careful when granting such blanket authority to a bureaucrat, especially, when this great country of ours is made up of people belonging to various nationalities of origin, unless the Administration can establish there is no room for racial/national origin profiling, such blanket authority should not be granted to bureaucrats.

A very interesting observation of the proposed EO is the stated purpose. The purpose of this EO is established in the section entitled “Background.” The sole motivation behind the EO appears to be shutting down the “jobs magnet” that draws the flow of illegal entries and visa overstays. Therefore, the purpose seems to be to protect low skilled jobs that illegal immigrants tend to fill. Yet, the EO seeks to delegitimize “legal” nonimmigrant visa programs such as F-1/L-1 and H-1B. This establishes that the Administration has no idea that their proposed EO will have almost zero impact on what they would like to achieve, which is, eliminating the main reason for illegal immigrants to illegally cross the border to enter the United States. Won’t the President’s proposed wall resolve this issue? It is a fact that the very “jobs magnet” that the administration wants to shut down is the magnet that creates low skilled jobs. Paradoxically, the EO seeks to delegitimize regulations that enable American business to hire highly skilled foreign labor, who, don’t tend to be illegal immigrants. I am also deeply concerned that the Administration wants to shut down the very engine that makes America great, the availability of good jobs to all its citizens and, where those jobs cannot be filled, to foreigners who enter the country legally.

That said, here is a brief outline of the pertinent parts of the proposed EO:

General Provision:

A blanket authority to the Secretary of Homeland Security to, within 90 days of the date of the proposed EO, to review all regulations that allow foreign nationals to work in the United States, determine which of those regulations violate the immigration laws or are otherwise not in the national interest and should be rescinded, and propose for notice and comment a rule to rescind or modify such regulations
Employment Based Visas:

• Propose for notice and comment a regulation to restore the integrity of employment-based nonimmigrant worker programs and better protect U.S. and foreign workers affected by those programs;

• Consider ways to improve the allocation of H-1B visas to make it merit based rather than lottery

• Within 180 days of the date of this order, (A) start performing site visits at places of employment of L-1 nonimmigrant workers, including third-party worksites where L-1 workers have been placed by the U.S. employers that petitioned for them; and (B) develop a plan to expand the site-visit program within two years to cover all employment-based visa programs;

• Make Visas Merit Based – Within one year of the date of this order, establish a commission or advisory committee—(A) to analyze the nation’s current immigration policies and their impact on our society, the economy, U.S. workers, and the foreign policy and national security interests of the United States; and (B) to provide recommendations for making U.S. immigration policy better serve the national interest, and to recommend changes to the immigrations laws to move towards a merit-based system;

• Provide reports –
  • (i) within 18 months of the date of this order, provide the President a report based on such investigation; and provide the President an initial report within nine months of the date of this order on 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.
  •  (ii) twice each fiscal year, and in consultation with the Secretaries of State and Labor, publish a report detailing—
    • (A) the total number of foreign-born persons authorized to work in the United States, disaggregated by immigration status;
    • (B) the total number of persons in the United States in each of the employment based nonimmigrant statuses; and within 18 months of the publication of this order, the Secretary of Labor, in consultation with the Secretaries of State and Homeland Security, shall publish a report detailing the effect of immigration (both legal and illegal) and of the employment of foreign temporary workers on wages and employment of U.S. workers since Fiscal Year 2000.

OPT:

Propose for notice and comment a regulation that would reform practical training programs for foreign students to prevent the disadvantaging of U.S. students in the workforce, better protect U.S. and foreign workers affected by such programs, restore the integrity of student visa programs, ensure compliance, and improve monitoring of foreign students;

Immigrant Visas:

The Secretary of State and the Secretary of Homeland Security, as appropriate, shall—(i) within 30 days of the date of this order, conform to Congressional intent the manner in which the Department of State and the Department of Homeland Security determine when an immigrant visa is “immediately available”; and (ii) propose for notice and comment a regulation that would reform the manner in which aliens file for adjustment to lawful permanent residence in order to reduce inefficiencies in the way immigrant visas are allocated;
EADs:

(a) the Secretary of Homeland Security shall—(i) for every fiscal year- (A) publish a report, within one month of the end of the first half of the fiscal year, detailing the number of new Employment Authorization Documents (EADs) issued during the first half of that fiscal year, the total number of individuals within the United States with EADs, and the categories or bases for issuance of all such EADs; and (B) publish a report, within one month of the end of the fiscal year, detailing the total number of EADs issued during that fiscal year, the total number of individuals within the United States with EADs, and the categories or bases for issuance for all such EADs.

At this time, the EO has not been signed, and it is unclear what changes will be made under each classification. Our office is continuously monitoring the changes, and will continue to provide updates as and when they become available.

Attorney Srinivas Ramineni is the Managing attorney of the greater Boston law firm of Ramineni Law Associates. He assists employers with Business Immigration and Labor and Employment Law compliance. He can be reached at [email protected] or (617) 830 4545.