June 15, 2017

Changes to H-1B Likely Won’t Come from the White House



According to a recent Playbook scoop, the White House has been working on changes to the H-1B visa program behind the scenes with members of the Justice Department (DOJ) in order to bring the program in line with Mr. Trump’s “Buy American and Hire American” executive order.

Some of the proposed changes could seriously undermine the program, and make it much more difficult for U.S. employers to fill their labor shortages with highly skilled foreign workers. But how much can the White House actually change without going through Congress? The answer: not much.

The possible changes the Trump administration is reportedly looking into include reducing the H-1B cap — the number of H-1B visas given out each year — and reducing the duration of the visa, even though we routinely run out of visas within days of the H-1B opening each year.

The White House and DOJ are also exploring new hoops for employers to jump through before they can hire foreign workers, like requiring that they post their jobs online first, and then requiring that they submit semi-annual reports on the duties performed by each of their foreign workers. There is additional interest in reducing the “optional practical training” (OPT) program used by STEM graduates to work in the U.S. for three years following graduation.

Unfortunately for the Trump administration, reducing the visa cap and duration will require passing legislation in Congress. Both the visa cap, exceptions to the cap, and the visa duration are specifically laid out in the Immigration and Nationality Act (INA), which means that they can’t simply be changed through federal regulation.

The same goes for most of the requirements for employers. Adding a requirement that employers hire U.S. workers first is unnecessary; the requirement already exists in the INA as part of a complete Labor Certification Application (LCA), which lays out the requirements that employers must fulfill before they can sponsor an H-1B employee.

Second, in order to require that employers advertise their jobs online first, Congress must add a provision into the LCA section of the INA which already includes significant worker protections. For example, employers must ensure that hiring an H-1B won’t affect the working conditions of U.S. workers, and take good faith steps to recruit a U.S. worker for the job before they apply to sponsor an H-1B worker.

The two changes the Trump administration can make through the regulatory process include cutting back of the OPT program, and adding a requirement that employers submit semi-annual reports on their H-1B employees.

The OPT program exists entirely as a regulatory scheme, and has been extended through regulatory changes from the Department of Homeland Security in the past, so new regulations can reduce this program. However, such changes must go through a notice-and-comment process before they can take effect, so this change won’t take place anytime soon.

No reporting requirements exist for H-1B employers in either the INA or in the federal regulations on the program. While the regulations on H-1B visas focus mostly on petition requirements for employers, and skill and documentation requirements for the visa-holders, it isn’t outlandish to imagine a place for a reporting requirement in this scheme.

Unless President Trump is secretly working with lawmakers to put legislation together on these proposals, employers of H-1B workers likely have little to fear from the executive branch on this front at the moment. While the President has clearly made a concerted effort to enact sweeping immigration policy change entirely on his own, his powers in this realm remain limited.