On April 18, 2017, President Trump signed an Executive Order mandating a comprehensive review of the H-1B visa program used by companies to employ highly-skilled foreign workers. The Executive Order instructs the U.S. Department of Justice, Department of State, Department of Labor and Department of Homeland Security to propose new rules and guidance to “protect the interests of U.S. workers” and prevent fraud and abuse within the program. The federal agencies are also charged with suggesting reforms to the H-1B program to ensure that H-1B visas are awarded to the “most skilled” or “highest-paid” beneficiaries.
What Employers Can Expect
The Executive Order does not change the current H-1B program, which is governed by federal law and regulations, nor does it impact the ongoing employment of H-1B workers pursuant to existing law and regulation. Rather, it calls for the strict enforcement of all current laws and directs the various federal agencies to propose program reforms.
The Executive Order is short on specifics and does not define “most skilled” or “highest paid” worker relative to any standard. It also does not address the number of H-1B visas awarded annually, which is set by statute.
Potential agency recommendations could include restricting the qualifying criteria for the H-1B visa, so that only top earners with a specific skill set may be considered. However, such changes are speculative and likely to require statutory or regulatory change, through either legislative action, or the administrative agency rule-making process.
Gibney will continue to closely monitor these developments. In the interim, employers should work with counsel to ensure that current company H-1B programs are compliant with all regulatory requirements, including record-keeping requirements, and to prepare for government audits.
If you have any questions regarding this alert, please contact your designated Gibney representative, or email firstname.lastname@example.org.