Impact of Proposed White House Executive Order on Employment-Based Immigration

Published on February 1, 2017

We have learned that the President is considering a draft Executive Order aimed at protecting American jobs and workers, which is expected to be signed by the end of this week. The Executive Order will impact employment-based visa programs that authorize foreign nationals to work in the U.S.  Within 90 days of the Order, the Secretary of Homeland Security is directed to review all regulations that allow foreign nationals to work in the U.S. and determine which of those regulations violate immigration laws or are otherwise outside the national interest and should be changed. The reviews and reports could be used as the basis to justify more restrictive immigration rules and policies.

Potential Impact on Nonimmigrant Work Visa Categories

The Secretary of State, Attorney General and the Secretary of Homeland Security are tasked with an initial investigation of the extent of any injury to U.S. workers caused by the employment of foreign workers in the U.S. in nonimmigrant visa categories. Within one year of the Order, a committee will be established to assess current immigration policies and their impact on our society, economy, U.S. workers, foreign policy and national security and give recommendations on changes to the law. The primary focus of the committee will be on detailing the potential injury to U.S. workers caused directly or indirectly by work performed by nonimmigrants in H-1B, L-1, or B-1 visa categories. Additionally, within 90 days of the Order, the committee is expected to submit options to expand and incentivize the E-verify program.

The Executive Order contains specific proposed regulation changes impacting the following nonimmigrant visa categories:

• B-1 temporary business visitors: Clarify which activities are permissible and not permissible for B-1 temporary business visitors.
• E-2 treaty investor: Reform the category so that activity under this program conforms with current law.
• H1B specialty occupation workers: Consider ways to make the process for H-1B visa allocation more efficient (including the H-1B lottery) to ensure the beneficiaries of H-1B visas are “the best and the brightest.”
• L-1 intracompany transferee workers: Begin site visits for employees in L-1 status within 120 days of the Order (this will include L-1A and L-1B visa holders), and develop a plan to expand the site visit program to cover all employment-based visa categories (including H-1B, E, TN and O-1) within two years.
• F-1 students: Propose regulations to reform practical training programs for foreign students (including OPT/CPT programs), restore the integrity of the student visa program, and increase monitoring of foreign students in order to protect U.S. and foreign workers affected by these programs.
• H-2A Agricultural workers: Submit options within 90 days of the order, to ensure the H-2A (temporary agricultural workers) is efficient and maintains programmatic integrity.
• J-1 exchange visitors: Improve protection of U.S. and foreign workers through changes to the  J-1 exchange visitor program (summer work travel).
• Employment Authorization Document (EAD): Establish an annual report detailing the number of Employment Authorization Documents issued in given year, the size of the foreign-born population, and the effect of immigration on employment.
• Parole Program: Calls for the immediate termination of parole programs that do not comply with immigration law.

Potential Impact on Immigrant Visa and Adjustment of Status Process (i.e., Employment-Based Green Cards)

• Within 30 days of the Order, the Secretary of State and Department of Homeland Security will reform the Department of State’s Visa Bulletin and determine how immigrant visas (i.e., green cards) are made available for allocation.
• Propose a regulation that would reform the manner in which aliens file for adjustment to lawful permanent residence in order to reduce inefficiencies in the way immigrant visas are allocated.

The immigration attorneys at Ryan Swanson are closely monitoring this Executive Order as well as all actions of the Administration impacting immigration and will provide updates regarding any changes and developments.

Amy Royalty can be reached at 206-654-2260 or [email protected].
Janet Cheetham can be reached at 206.654.2235 or [email protected].
Joel Paget can be reached at 206.654.2215 or [email protected].
Marsha Mavunkel can be reached at 206.654.2253 or [email protected].