On April 18, 2017, President Trump signed an Executive Order entitled “Buy American and Hire American” whereby the executive branch confirmed its intent to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad.”  The Executive Order states that as soon as possible, the Secretary of State, Attorney General, Secretary of Labor, and Secretary of Homeland Security are to propose new immigration-related rules and guidance that protects the interest of U.S. workers and prevents fraud and abuse of visa programs.

The Executive Order places particular focus on reforming the H-1B visa program, which is the most commonly issued work-authorized visa in the United States.  The H-1B visa annual cap of 85,000 visas is usually met within the first week after the filing window opens.

To qualify for the H-1B visa program, employers must file a petition on behalf of their foreign national employees proving that the offered position is a “specialty occupation” and that the candidate meets the level of skill required to perform the job duties.  A “specialty occupation” is generally defined as a job requiring a level of skill and complexity that is normally associated with completion of a baccalaureate degree or higher.  Not only must the position itself require this level of education and/or equivalent experience, but the qualifying beneficiary must meet these requirements through possession of a related degree and/or skill set.

When employing workers pursuant to the H-1B visa program, employers guarantee that wages will remain at or above a minimum amount, referred to as a prevailing wage.  The prevailing wage for any given occupation is obtained through the Department of Labor’s Bureau of Labor Statistics by agreeing to pay H-1B workers at least the assigned prevailing wage, employers ensure that the hire and retention of foreign national workers will not depress US wages in any way.

In the current iteration of the H-1B program, no preference is given to those with higher academic accomplishments or to those whose wage levels are considerably higher than the average employee in similar positions in the area of intended employment.  As long as the occupation is considered a specialty occupation, the employee has at least a baccalaureate level of education, and the wage is at or above the prevailing wage amount, the petition will be considered for approval.

The Executive Order directs the above-mentioned federal agencies to suggest reforms to the H-1B visa program that will fundamentally change the way that petitions are reviewed, prioritized, and approved.  Specifically, it directs the State Department, Homeland Security, and the Department of Labor to devise new rules and policies that “ensure that H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries.”

The Executive Order does not provide a roadmap for the agencies on how such a prioritization of beneficiaries would practically be implemented, however, it is clear from the scope of the directive that making such a significant change will require formal regulatory rulemaking procedures to be followed by each federal agency, which, to remain compliant with the Administrative Procedures Act, will take time to prepare and lawfully promulgate.

We will continue to monitor updates to the H-1B program and any forthcoming changes as a result of this Executive Order.