H-1B Visa Program Under Government Scrutiny
Haynes and Boone, LLP Press
The current Presidential Administration has not exempted work visas from its immigration initiatives and focus. On April 18, 2017, President Trump signed an Executive Order designed to protect American jobs (“Hire American”) and products and goods manufactured in the United States (“Buy American”). The Departments of Homeland Security, Labor, and Justice have received instructions to survey employment-based foreign worker programs to ensure system integrity; rigorously enforce and administer the laws governing entry into the United States of workers from abroad; and to otherwise protect the economic interests of U.S. workers.
The H-1B program has received special attention. Clients should recall that H-1Bs are professional work visas for degreed persons employed in specialty occupations. Specifically, the April 18, 2017, Executive Order directs the inter-agency group to “suggest reforms to help ensure that H-1Bs are awarded to the most-skilled or highest-paid petition beneficiaries.” President Trump commented at the signing ceremony that H-1B visas “should never be used to replace American workers.” Although the current statutory schemes remain unaffected, the inter-agency group is nonetheless directed to propose new rules and issue new guidance, as soon as practicable, to “supersede and revise previous rules and guidance.”
Combined with the Executive Order’s directives, other recent agency announcements and policy memoranda have also addressed the H-1B program. Collectively, they will restrict the program’s parameters and will increasingly place employers under possible investigative scrutiny. Mandates and changes include:
Employers are cautioned to consider their use of work visas generally, and H-1Bs specifically, and plan accordingly. Moreover, companies should re-visit their H-1B files and records, ensuring retention and program requirements have been satisfied. As federal agencies promulgate concrete rules or guidelines, we will update our clients with additional alerts and guidance.
For more information please contact one of the individuals listed below.
The author wishes to thank Eduardo Aguirre, a Senior Advisor in Haynes and Boone’s Houston office, Former Director of the U.S. Citizenship and Immigration Services (USCIS) and Former Ambassador to Spain, for his insights related to this article.
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