February 01, 2017

Rumored Changes to the H-1B Program

There has been recent media coverage of possible changes to the H-1B visa program. With the change in administration and the upcoming April 1st deadline to file H-1B petitions subject to the annual cap, many are worried about how such changes might affect current H-1B holders as well as those who are preparing petitions for submission.

Legislative Proposals

Three pieces of legislation have been introduced in Congress this month that would aim to reform the H-1B visa system. The reforms target raising the minimum wage required for exempting workers from the attestation requirements for H-1B “dependent” employers, eliminating the lowest level of the four-tier DOL prevailing wages, and moving away from a lottery system to a preference system for submitting cap-subject petitions.

The proposed pieces of legislation are just days old and must go through a series of legislative maneuvers before they may find their way being introduced to the floor for a vote, or being added into a larger bill. Once passed, and signed by the President, the legislation must then be implemented by the affected agencies, which typically requires a rule-making process to promulgate regulations, after a period of notice and comment from the public. In other words, yes, the H-1B category is a target for legislation in this political climate. We will keep abreast of legislation that gains traction in Congress and will alert our clients to prepare in advance of any changes to the program. At this time, no legislation has been passed that will affect the H-1B program.

Here is a good website to track legislation once it is introduced, if you would like to do so: www.govtrack.us

Executive Orders

A draft (unsigned and unconfirmed) Executive Order entitled “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” has been circulated by various media outlets. Sections of the draft order include the following priorities:

  • “[I]n consultation with the Secretaries of State and Labor … restore the integrity of employment-based nonimmigrant worker programs and better protect U.S. and foreign workers affected by those programs”
  • “consider ways to make the process for allocating H1B visas more efficient and ensure that beneficiaries of the program are the best and the brightest”
  • “… provide recommendations for making U.S. immigration policy better serve the national interest; and to recommend changes to the immigrations [sic] laws to move towards a merit-based system”

This language does not indicate how the executive branch would make changes to the H-1B program. It is likely that any such proposed changes would be accomplished through new regulations, which would require a public notice and comment period before implementation. That equates to several months of waiting for new regulations to be drafted, posted, commented upon and published in final form, then implemented.

There is no verifiable information about if or when this draft Executive Order would be released, or what changes may be made to it if signed. Because the H-1B program is statutory and has implementing regulations, there is a limit to the scope of the President’s executive powers, and a longer timeline for implementation of changes to the program.

We will continue to keep our clients apprised of any changes in regulatory or statutory provisions that may affect non-immigrant and immigrant benefits. Please contact us if you have further questions.

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