On April 18, 2017, President Donald Trump signed an Executive

Order titled, “Buy American, Hire

American.”1

Enhanced Scrutiny of H-1B Program

In the “Hire American” portion of the order, Trump

announced he was directing DOL, DOJ, DHS, and DOS to review the

current laws governing the H-1B program and suggest changes to

prioritize the most skilled and highest paid positions. The

President also indicated he was directing federal agencies to

review all visa programs and take prompt action to crack down on

fraud and abuse in order to protect U.S. workers. This follows the

notices found in memoranda from DOL, DOJ, and DHS where the various

agencies announced that they would impose greater scrutiny on the

H-1B program.

No Immediate Impact on H-1B Visas

The Executive Order will have no immediate impact on H-1Bs. The

Order does not pronounce any concrete changes, but rather simply

articulates a desire to create higher wages and economic rates for

U.S. workers, and to do so the executive branch will rigorously

enforce immigration laws governing entry to the U.S. Again, rather

than listing specific changes, the order states that the Secretary

of State, Attorney General, Secretary of Labor, and Secretary of

Homeland Security should propose new rules and guidance to protect

the interests of U.S. workers including preventing fraud or abuse.

This is consistent with the three memoranda and announcements which

were issued by the Department of Justice2, Department of

Labor3, and Department of Homeland Security4

early April announcing that the government agencies would be taking

a targeted approach to prevent fraud with the H-1B program.

Following the Executive Order, we anticipate additional updates

from these agencies in the near future.

Potential Merit Based System Forthcoming

Some Bills in Congress have discussed the possibility of a

merit-based system for allocating H-1B visas rather than the

current lottery. The Executive Order follows this concept. The

order states, “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.” These types of changes

to the H-1B program contemplated by the Administration would

require legislative action or rulemaking and would take time to go

through the necessary processes.

Potential Impact on Outsourcing Companies

The potential outcomes of the order could hurt outsourcing

companies, most of which are from India. These companies file the

most visa applications.5 If the H-1B process moves away

from a lottery-based system to a process where visas are awarded

based on who pays the highest salary or based on the background of

the foreign national, it is possible that fewer visas would be

accepted from the outsourcing firms and distributed more to other

companies.

Footnotes

1 https://www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american

2 https://www.justice.gov/opa/pr/justice-department-cautions-employers-seeking-h-1b-visas-not-discriminate-against-us-workers

3 https://www.dol.gov/newsroom/releases/eta/eta20170404-0

4 https://www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse

5 https://www.nytimes.com/2017/04/18/us/politics/executive-order-hire-buy-american-h1b-visa-trump.html

The content of this article is intended to provide a general

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