President Orders H-1B Visa Rules Reviewed, Tightened

Apr 26, 2017

On April 18, 2017, President Trump signed the “Buy American and Hire American” executive order (EO), which addresses H-1B visas.  The EO calls for the application of existing U.S. laws to visa recipients and the re-evaluation of the H-1B program.

In reiterating that — from a policy standpoint — the beneficiaries of U.S. visas are eligible to receive specific benefits under the Immigration and Nationality Act (INA), the EO specifically requests enforcement of section 212(a)(5) of the INA.  As section 212(a)(5) deals with general definitional qualifiers for visa recipients, this provision of the order appears to be a general policy guideline.

Second, under a paragraph entitled: “Ensuring the Integrity of the Immigration System in Order to ‘Hire American,'” the EO requests that various agencies and departments promulgate new rules and guidance to “supersede or revise previous rules and guidance, if appropriate” under existing law to protect American workers.  There are no specific directives or guidance applicable to that instruction. Further, while the order aims to reduce “fraud or abuse,” those terms are not expressly defined in the EO.

Finally, the order requests that 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.” The order does not, however, define what “most skilled” means. Since the H-1B visa category does not require the beneficiaries to be the most skilled or the highest paid workforce, it will take congressional intervention in the form of new legislation to change U.S. immigration laws to carry out this request.

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