President Trump to Sign Executive Order Directly Targeting the H-1B Program

By Michelle Shepard[1]

On Tuesday, April 18, 2017, President Trump is expected to sign an Executive Order (“EO”) titled “Buy American, Hire American.”[2]  The “Hire American” aspect of the EO will directly address fraud and abuse prevention under the H-1B program, as well as the H-1B quota. According to Senior White House Officials, when:

…he [President Trump] campaigned, talked a lot about abuses in our guest worker programs and in particular about abuses in our H1B visa programs, and even brought on the stage at a few campaign events individuals who had been displaced by abuses in our guest worker programs. Now, this executive order will call for the strict enforcement of all laws governing entry into the United States of labor from abroad for the stated purpose of creating higher wages and higher employment rates for workers in the United States.  And the executive order will further call on the Departments of Labor, Justice, Homeland Security and State to take prompt action to crack down on fraud and abuse — which should both be understood as separate problems — in our immigration system in order to protect workers in the United States and their economic conditions.

In particular, the EO requests the Department of Homeland Security to review the wage system currently in place for the H-1B program.  According to the White House:

80 percent of H1B workers are paid less than the median wage in their fields.  Only about 5 to 6 percent, depending on the year, of H1B workers command the highest wage tier recognized by the Department of Labor, there being four wage tiers.  And the highest wage tier, for instance, in 2015, was only 5 percent of H1B workers.

The wage tiers referred to by the White House are the prevailing wage levels (Levels I, II, III, and IV) in place by the Department of Labor.  By selecting a Level I, an individual is considered in the lowest tier. This, according to the White House, approx. 5% of  H-1B workers are categorized in the upper tier, or Level IV.

This EO will directly target use of the H-1B program by consulting companies. The White House further suggests some of the changes may be administrative in nature.  For instance, they suggest:

…looking at things on the administrative side, like increasing fees for H1B visas… adjust[ing] the wage scale — … enforcing gross and egregious violations of the H1B program.  [Reviewing the] lottery system disadvantages master’s degree holders.  There’s ways that you could adjust the lottery system to give master’s degree holders a better chance of getting H1Bs relative to bachelor’s degree holders.  There’s a lot of possible reforms that you could do administratively in addition to a suite of legislative actions.  

 At this time, it is unclear what actions USCIS will take based on this EO. Although, the White House makes some recommendations as to possible administrative or legislative changes, no changes have been made to the H-1B program. The EO is anticipated to request changes “as soon as practicable,” however the White House alludes a 220 day time-frame would be appropriate. The White House closed their press release by indicating “…there’s great enthusiasm for H1B reform in Congress.”

Our office is closely monitoring the Executive Order, and its impact on the H-1B program. We will continue to provide updates as they become available. Please continue to monitor our website.

 

[1] Michelle Shepard, Esq. is the Non-immigrant Visa Department Managing Attorney at Ramineni Law Associates, LLC.  She can be reached at (617) 500-9983 or mshepard@raminenilaw.com.   She has been with Ramineni Law Associates, LLC since 2010, and Managing the NIV Dept. since the Fall of 2012. She is a licensed to practice in the State of Massachusetts, and a 2012 graduate of New England Law | Boston.

[2] https://www.whitehouse.gov/the-press-office/2017/04/17/background-briefing-buy-american-hire-american-executive-order (last visited April 18, 2017)