UNCONFIRMED AND UNSIGNED LEAKED PROPOSED EXECUTIVE ORDER ON H1B VISA & IMMIGRATION.

President Trump has already signed several immigration-related executive orders. One unconfirmed and unsigned leaked proposed order, entitled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” includes a number of provisions related to the employment-based immigration system.

None of these provisions is in effect. It is possible that this order will never be signed, or that it will be substantially modified prior to being signed. The order proposes the following:

• “in 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 laws to move towards a merit-based system”

• Secretary of Labor to issue a report on “… the actual or potential injury to U.S. workers caused … by work performed by nonimmigrant workers in the H1B, L-1, and B-1 visa categories.”

• DHS to draft a regulation that would clarify the types of activities that are or are not permissible for B-1/B-2 visitors. More specifically, the order seeks to eliminate situations in which a B-1/B-2 is permitted to work while in the United States.

• DHS to “review all regulations that allow foreign nationals to work in the United States, determine which of those regulations violate immigration laws or are otherwise not in the national interest and should be rescinded, and propose … a rule … to rescind or modify such regulations.” This may affect H-4 EAD program.

• DHS to start work on a regulation that would “… reform practical training programs for foreign students to prevent the disadvantaging of U.S. students in the workforce, better protect U.S. and foreign workers affected by such programs, … and improve monitoring of foreign students.” This may affect OPT and CPT.

• Department of State (DOS) and the DHS to “conform to Congressional intent … [in] determin[ing] when an immigrant visa is ‘immediately available.’” This may affect dual-chart visa bulletin system implement in October 2015, which, at times, allows for the filing of an adjustment of status application (form I-485) based on a ‘dates for filing’ chart.

• DHS to propose regulatory reforms to the E-2 visa category. Details about the form and intent of any such reforms, however, remain unclear.

• Immediate termination of parole programs that do not comply with the principles laid out in the memo, or that otherwise do not comport with immigration law.

LEGISLATION PROPOSED BY U.S. REP. DARRELL ISSA (R-CALIFORNIA)

On January 4, 2017, Congressman Darrell Issa (R-Calif.) today re-introduced the “Protect and Grow American Jobs Act,” in an effort to help stop the outsourcing of American jobs and to reform the nation’s high-skilled immigration program. The bill proposes to:

• Raise salary requirement for H-1B visa positions to $100,000/year (up from $60,000/year currently); and
• Require successful candidates to have a master’s degree from accredited institutions as determined by the Department of Homeland Security.

The rules, if enacted, would apply only to US-based companies which have more than 50 employees and with more than 15% of that workforce comprising of H-1B visa workers.

LEGISLATION PROPOSED BY U.S. REP. ZOE LOFGREN (D-CALIFORNIA)

On January 4, 2017, U.S. Rep. Zoe Lofgren (D-Calif.) introduced “The High-Skilled Integrity and Fairness Act of 2017” to curtail abuse of the H-1B program.

Among other reforms, the High-Skilled Integrity and Fairness Act of 2017 proposes:

• Increases prevailing wage requirements to protect U.S. workers by replacing the current 4-level wage calculation with a new, more balanced, geographically based 3-level formula which eliminates the lowest wage level and puts upward pressure on the wages in the remaining levels.

o Level 1 = mean of bottom 2/3 of wages surveyed
o Level 2 = mean of all wages surveyed
o Level 3 = mean of top 2/3 of wages surveyed

• Prioritizes market-based allocation of H-1B visas as follows:
1) Employers paying 200% of level 3 prevailing wage, then 150% of level 3
2) Employers paying 200% of level 2 prevailing wage, then 150% of level 2
3) Employers paying 200% of level 1 prevailing wage, them 150% of level 1

• Removes the ‘per country’ cap for employment based immigrant visas so that all workers are treated more fairly and to move to a system where employers hire the most skilled workers without regard to national origin.

• Raises the salary level at which H-1B dependent employer are exempt from attestation requirements to a new required wage level of 35 percentile points above the median national annual wage for Computer and Mathematical Occupations published by the Department of Labor Occupational Employment Statistics (roughly $132,000), which would be adjusted in the future without the need for new legislation, and eliminates the Master’s Degree exemption for dependent employers.

• Sets aside 20% of the annually allocated H-1B visas for small and start-up employers (50 or fewer employers) to ensure small businesses have an opportunity to compete for high-skilled workers, while still protecting against outsourcing.

• Removes visa hurdles for students and other temporary visa holders by building a bridge from F-1 student status to Lawful Permanent Residence.

• Removes paperwork burdens by streamlining H-1B filing requirements and reducing administrative costs.

• The legislation tightens employee protection by stipulating that employers may not reduce beneficiary wages, regardless of whether the deduction is in accordance with a voluntary authorization by the employee.

• It makes exceptions for taxes, garnishments, and deductions that are reasonable and customary in the occupation.

LEGISLATION PROPOSED BY SENATORS CHUCK GRASSLEY (R-IOWA) AND DICK DURBIN (D-ILLINOIS)

On January 19, 2017, Senators Chuck Grassley and Dick Durbin, announced that they would reintroduce their bill for revamping the H-1B and L-1 visa programs. The bill was first introduced in 2007.

• The bill will require U.S. Citizenship and Immigration Services to prioritize for the first time the annual allocation of H-1B visas. The new system would ensure that the best and brightest students being educated in the United States receive preference for an H-1B visa. The preference system also gives a leg up to advanced degree holders, those being paid a high wage, and those with valuable skills.

• The bill would crack down on outsourcing companies that import large numbers of H-1B and L-1 workers. Specifically, the bill would prohibit companies with more than 50 employees, of which at least half are H-1B or L-1 holders, from hiring additional H-1B employees.

• The bill also gives the Department of Labor enhanced authority to review, investigate, and audit employer compliance with program requirements, as well as to penalize fraudulent or abusive conduct. It requires the production of extensive statistical data about the H-1B and L-1 programs, including wage data, worker education levels, place of employment and gender.

• The bill clarifies that working conditions of similarly employed American workers may not be adversely affected by the hiring of the H-1B worker, including H-1B workers who have been placed by another employer at the American worker’s worksite. In addition, it explicitly prohibits the replacement of American workers by H-1B or L-1 visa holders.

• In addition, the bill includes several reforms of the L-1 visa program. These include establishment of a wage floor for L-1 workers; authority for the Department of Homeland Security to investigate, audit and enforce compliance with L-1 program requirements; assurance that intra-company transfers occur between legitimate branches of a company and don’t involve “shell” facilities; and a change to the definition of “specialized knowledge” to ensure that L-1 visas are reserved only for truly key personnel.

LEGISLATION PROPOSED BY SENATOR SHERROD BROWN (D-OHIO)

Senator Sherrod Brown also announced he would introduce an H-1B and L-1 Visa Reform Act in the Senate which would close loopholes in the H-1B and L-1 visa programs and provide increased protections for both American workers and visa holders. The bill would:

• Require that employers first offer a vacant position to an equally or better qualified American worker before seeking an H-1B or L-1 visa holder.

• Establish wage requirements for L-1 workers and improve H-1B wage requirements to encourage companies to hire qualified American workers and prevent them from using foreign workers as a source of cheap labour.

• Under the H-1B and L-1 Visa Reform, the Department of Labor (DOL) and the Department of Homeland Security (DHS) would have additional oversight authority to investigate fraud and abuse as well as to increase penalties for companies that violate the bill’s requirements.

• The bill also requires DOL and DHS to share information so that visa petitions are effectively scrutinized.