Speaking at his Joint Address to Congress in February 2017, President Donald Trump expressed his intention to tackle legal immigration beyond his Executive Orders on border security and international travel. Recent announcements and actions by the Trump Administration regarding the H-1B visa program – the most common work visa for professionals – have sparked widespread commentary in the media. How do these developments affect the current state of the H-1B program?
On Tuesday, April 18, 2017, President Trump signed an Executive Order, outlining changes to the H1-B visa program his administration aspires to pursue – for example, putting a greater burden on employers to demonstrate that the visas are only going to the most highly skilled and highest-paid workers in their fields. The Executive Order calls for a review of the H-1B program and the pursuit of certain changes. However, the order, alone, has no substantive effect on current H-1B practices. The main components of the H-1B program are contained in the immigration statute, which can only be changed by Congress. The Trump Administration would have to go through Congress for any major efforts to reform the H-1B program. Even though some elements can be modified through administrative rulemaking, such modifications may not conflict with the underlying statute.
The Executive Order came on the heels of the previously-reported temporary suspension of the “Premium Processing” option for H-1Bs, which allowed employers to receive decisions on H-1B petitions in an expedited timeframe of 15 calendar days. With the suspension of Premium Processing, employers looking to hire new H-1B workers will face unpredictability, as they rely on the government’s regular H-1B processing times. In some cases, regular processing times can exceed many months and even a year. This creates a particular challenge for employers that may look to hire on a seasonal and often times urgent basis such as universities and their affiliated non-profit healthcare systems. There is some recourse for businesses impacted by this move. The good news is that extensions and transfers of existing H-1B visa holders do not necessarily require a decision for employment authorization purposes (although a decision might be required for international travel reasons). Timely-filed H-1B extensions allow the foreign national to continue working for the employer during the pendency of the extension for up to 240 days after the H-1B expiration date. Foreign nationals may start working for a new employer upon the proper filing of an H-1B transfer (“portability”) petition by the new employer. There could also be some potential alternative options, other than H-1B, as Premium Processing is still available for other work visa type – for example, the O-1 visa for individuals with extraordinary ability or the TN visa for Canadian or Mexican professionals. Premium Processing for H-1B petitions will be suspended for up to six months, according to the government’s initial announcement.
Even though the new Executive Order does not change the H-1B program, current H-1B holders will likely not be spared from increased scrutiny under the Trump Administration. As President Trump stated in his announcement about the order, he sees fraud as a major concern. On April 3, the U.S. Department of Homeland Security (DHS) also issued a statement regarding fraud and abuse in the H-1B visa program. In the statement, DHS discussed fraud and abuse indicators, encouraged the reporting of suspected fraud or abuse, and announced the expansion of site visits. Therefore, it is likely that the Trump Administration will focus on identifying H-1B fraud through site-visits and encouraging the reporting of violations by employees or by witnesses of H-1B visa abuse.
Employers should expect that H-1B site visits will likely increase. H-1B site visits are conducted by the Fraud Detection and National Security Directorate (FDNS). We encourage employers to prepare for and be ready to cooperate with FDNS site visits in order to verify the accuracy of the information provided in the underlying H-1B petition. If FDNS discovers that employee is not working on the work site listed in the H-1B petition, is paid less than the required salary, or that other violations have occurred, it could report the violations to U.S. Citizenship and Immigration Services (USCIS), leading to the petition’s revocation.
So, who has the most to lose from these new policies and proposals? The tech sector is an obvious victim as it relies heavily on H-1B visa workers, but other industries such as healthcare and education will also be impacted. These industries should plan ahead and make the required H-1B filings as early in advance of the employment start date as possible. They should also consider exploring alternative visa options in appropriate cases. All employers should ensure that they are compliant with the current visa requirements. Ultimately, the best path forward will take time to determine, but one thing seems certain: immigration restrictions and enforcement have become the new normal under President Trump.