During his presidential campaign, then-candidate Donald J. Trump remarked on the H-1B program and perceived program abuses that involve the alleged use of lower-skilled and lower-wage foreign workers to replace U.S. workers in the job market.  In the early days of his administration, a draft of an Executive Order targeting legal immigration programs, including the H-1B program, was leaked but never issued.  Today, President Trump formally signed an Executive Order to “Buy American, Hire American.”

The Executive Order targets perceived “widespread abuse” of the H-1B program and sets forth a policy that will combine stricter enforcement of existing regulations, new regulations that change the way the H-1B visa quota is allocated, and support for possible Congressional legislation to make even more substantial changes to the H-1B program going forward.

This new Executive Order comes as no real surprise.  Immigration lawyers have already noticed a marked increase in CIS Requests for Evidence (RFE) across multiple visa categories, particularly inclusive of H-1B petitions, including cap-exempt and H-1B extension petitions as well as L-1A and L-1B petitions.  Petitioners must be prepared to provide information and documentation in excess of the usual requirements for filing and should anticipate a potential RFE even in well-documented cases, especially as the CIS works to digest and apply the policy statements outlined in the new Executive Order calling on the DHS to effectively “get tough” on H-1B adjudications.

While a shift to stricter enforcement will certainly have an impact on the time and cost of securing H-1B visa petition approvals, the Trump Administration is not able to fully overhaul the H-1B program without the cooperation of Congress.  The H-1B program is a product of Congressional legislation and would require further legislation to make wholesale changes.  A number of proposals have been introduced in recent years, but to date none have gained traction.  Renewed focus on the H-1B program as a result of the Executive Order could prompt further Congressional effort to address perceived program abuses legislatively.

Foster will provide additional updates on future H-1B program changes or legislation which may follow this Executive Order via our firm’s website at www.fosterglobal.com.