Wolfsdorf Rosenthal LLP

H-1B Visa For Non-Immigrants – Proposed Changes Alert

A number of changes have been made to the US immigration laws in the first few days of the Trump Presidency. Several immigrant programs are now subject of renewed interest and concern, including the fate of the H-1B visa for non-immigrants. An Executive Order was drafted January 23, 2017 by the White House titled “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs,” which addressed all employment-based visa categories. Several pieces of legislation were also introduced in Congress that particularly addressed the H-1B program.

Proposed Changes to the H-1B Program

The draft Executive Order titled “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” lays the groundwork for many changes to the employment-based immigration system in the United States. However, it is not yet clear if President Donald Trump intends to sign the EO. It is also not clear whether all of the proposals made in the EO are enforceable and lawful. Although the Executive Order aims to broadly focus on all employment-based immigration programs, it has two sections that specifically address the H-1B visa program.

  • Under these sections, agencies are directed to consider changes to the H-1B process to make it “more efficient and ensure that beneficiaries of the program are the best and the brightest.”
  • Agencies are also directed to provide the President a report of the “actual or potential injury to U.S. workers caused, directly or indirectly, by work performed by nonimmigrant workers in the H-1B, L-1, and B-1 visa categories.” This has to be done within nine months of the Executive Order.

Pending Legislation in the House and Senate

Apart from the draft Executive Order, bills have been introduced in the House and Senate. These bills seek to reform the H-1B visa program. Rep. Zoe Lofgren (D-CA) introduced a House bill that received substantial media attention. Some of the most significant changes proposed by Rep. Zofgren are to reprioritize the allocation of H-1B visas. This will allow employers with the highest-paying jobs to be allocated visas first, and will proceed in descending order based on the rate of pay. This also sets a much higher target wave level for H-1B workers, more than double the current target wage rate of $60,000.

Another bipartisan bill was introduced in the Senate on Inauguration Day aimed at visa “fraud and abuse.” This bill bans the replacement of U.S. workers with H-1B visa holders explicitly. It also reprioritizes allocations of H-1B visas, with a mix of priorities given to U.S. students with STEM degrees and high-paying jobs.

Other bills are circulating which may be introduced in the coming weeks and months.

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