President Orders H-1B Visa Rules Reviewed, Tightened

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.

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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.

This was originally published on Littler Mendelson’s website. © 2017 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.

Jorge R. Lopez is a shareholder in the Miami office of Littler Mendelson and Chair of the firm's Global Mobility and Immigration Practice Group.

He has practiced immigration law for more than 30 years and focuses on corporate immigration, processing temporary and permanent corporate visa petitions, and all aspects of the Immigration and Nationality Act regarding visa benefits and Federal I-9 immigration compliance. Jorge often appears before the Department of Homeland Security on immigration benefits and compliance matters, as well as before the Department of State and other state entities regulating immigration compliance. He also represents clients in international forums on global migration issues.

Board-certified in immigration and nationality law by the Florida Bar, Jorge has advised multinational companies on how to meet their global workforce needs and on the management of I-9 audits and federal investigations. He also has actively managed the worldwide transfer of staff for a number of multi-national companies.

Michelle White is an associate in the Miami office of Littler Mendelson. She has experience in all areas of immigration law, specifically employment based and family based petitions, naturalization, Extraordinary Ability petitions, national interest waivers and EB-5 investor visa petitions. She represents domestic and multinational employers in connection with U. S. immigration-related employment issues before:

  • The Department of Homeland Security
  • The Executive Office of Immigration Review
  • The Department of State
  • The Department of Labor

Michelle also counsels employers on immigration policy, strategy, and compliance and has experience conducting audits to assess I-9 compliance.

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