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President seeks tougher requirements for in-demand visa but will need Congress to make changes.
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To create more jobs for U.S. workers, President Donald Trump's latest executive order directs federal agencies to review and propose changes to the H-1B high-skilled guest worker visa program. To put those changes in place, though, requires action from Congress.
Trump signed the "Buy American, Hire American" order April 18 at the headquarters of Snap-on Tools, a manufacturer in Kenosha, Wis.
While the order itself is scant on details, senior administration officials who briefed reporters said the president is asking the Homeland Security, Justice, Labor and State departments to crack down on employers who abuse the visa program and propose reforms to ensure visas are awarded to the most-skilled workers at the highest wage levels. The officials suggested that the administration would consider increasing fees for H-1B visas, proposing adjustments to the wage scale for "a more honest reflection of what the prevailing wages actually are in these fields," and doing away with the random lottery system used to allocate visas. They defined abuse of the program as "to bring in a worker not because you need their skills or talent, but for the purpose of undercutting the American worker."
Critics argue that too many H-1B visas are awarded to foreign staffing companies contracted by U.S. employers to replace U.S. workers with cheaper, foreign workers. Proponents of the program contend that foreign workers with in-demand skills are needed to fill a skills gap in the U.S.
[SHRM members-only toolkit: Obtaining U.S. Employment Visas]
"Jobs must be offered to American workers first." Trump said at the signing. "Right now, widespread abuse in our immigration system is allowing American workers of all backgrounds to be replaced by workers brought in from other countries to do the same job, sometimes for lesser pay."
Administration officials said that only about 5 to 6 percent of H-1B workers receive salaries in the highest wage tier recognized by the Department of Labor, whereas 80 percent receive less than the median wage, and only 10 percent receive the median wage.
"Workers are often brought in well below market rates to replace American workers, again, sort of violating the principle of the program, which is supposed to be a means for bringing in skilled labor, and instead you're bringing in a lot of times workers who are actually less skilled and lower paid than the workers that they're replacing," administration officials said.
Nothing in the order is expected to affect this year's visa lottery, said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management. "Instead, it will ask for administrative solutions moving forward, and the administration acknowledges that some H-1B reforms will require legislative action."
Real Changes Require Congress to Act
The Trump administration can't alter the number of visas awarded every year—only Congress can do that. But administration officials said they are looking to create a new structure for allocating those visas as a "transitional step."
Experts say that the administration can really do very little before running up against statutory limits.
"Trump can't accomplish any of the things he would like to accomplish solely with an executive order," said William Stock, a founding partner of Klasko Immigration Law Partners in Philadelphia and president of the American Immigration Lawyers Association. "There are very few things he can do through regulation," he added.
"The best the president can do is get the studies done and then fight the battle in Congress to come up with statutory changes to the law," agreed Jorge Lopez, a shareholder at law firm Littler Mendelson who is based in Miami and chairs the firm's Global Mobility & Immigration Practice Group. "Eliminating the lottery system itself is not problematic, [because it was created by U.S. Citizenship and Immigration Services (USCIS) as a nonstatutory solution to the problem of receiving more petitions annually than the cap allows] but concentrating on higher-tiered skill sets or higher wages as a way to allocate visas changes the law and will have to involve Congress."
Stock said that the Trump administration could propose a reallocation that sticks within the criterion that Congress provided—that petitions are considered in the order in which they are received—but reallocating by salary level or education requirements would be beyond its authority.
Similarly, Stock doesn't see how the administration can modify wage levels or raise fees on visas unilaterally and survive a court challenge. "Adjusting the wage scale can only be done through legislation," he said. "There are various bills floating around right now that propose various fixes to the wage levels."
He explained that USCIS can set fees to recapture the cost of processing applications and to charge a certain amount of overhead to cover the types of applications that don't have a fee.
"But to the extent that they are going beyond the statute in terms of cost recovery, it would be open to challenge," Stock said. "Again, Congress could assign whatever fee on any visa it wants. But the administration cannot unilaterally impose a fee that goes beyond what Congress has authorized."
Stock sees the main purpose of the order and announcement is to "get journalists all around the U.S. talking about H-1B visas and planting the idea that the administration thinks there is all this fraud and abuse. There's not huge amounts of fraud and abuse in these programs. Most petitioners are following the rules."
Lopez views the executive order as another "Band-Aid on an issue that needs open heart surgery. If you are going to reform the immigration system, do it right and do it comprehensively," he said.
Meanwhile, the number of H-1B visa petitions for fiscal year 2018 fell below 200,000 for the first time since 2014, U.S. Citizenship and Immigration Services announced.
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