Recent activity in Congress and from the Trump Administration have signaled potential changes to several work visa categories. Much of the attention on these proposed changes focuses on the H-1B visa, one of the most frequently used work visas. With this update, MVA outlines the proposed executive order as well as the pending legislation that could impact the H-1B program and employment-based immigration in general.

DRAFT EXECUTIVE ORDER ON EMPLOYMENT-BASED IMMIGRATION:

President Donald J. Trump is expected to sign an Executive Order (“Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs”) soon that would direct various governmental agencies to undertake a full review of the current U.S. employment-based immigration rules.  MVA has prepared the following brief synopsis based on a draft of the order that is being circulated via the media. 

Based on the draft, it is anticipated the final order will put in motion changes to certain work and student visa categories, including:

• Assessment of the H-1B process to ensure that the beneficiaries are the “best and the brightest”;
• Expansion of L-1 site visits (within 180 days of the signed order) to include all places where L-1 visa holders work, including third-party worksites;
• Further expansion of the site-visit program to cover all visa categories (within 2 years of the signed order);
• Clarification on what activities are permissible within the B-1/B-2 business visitor visa category;
• Review and reform of practical training program offered to foreign students; and
• Review of the E-Verify program and options to incentivize the increased use of E-Verify by U.S. employers.

Many of the proposed actions require a “notice and comment” period and therefore would not immediately suspend or terminate any individual’s work authorization or visa status. Also, the draft order does not specifically call for any changes to this year’s H-1B lottery process.

We stress that this is a draft of an unsigned executive order and no provision is final as of yet. However the draft does outline the immigration policy priorities of the new administration as previously discussed in our client alert in December 2016.

CONGRESSIONAL LEGISLATION:

The following bills have been proposed in Congress and that would make substantive changes to the current H-1B program:

House Bill 170: “Protect and Grow American Jobs Act”

The bill would require H-1B dependent employers to pay sufficiently high wages to H-1B workers. An H-1B dependent employer is deemed “dependent” based on the number of H-1B employees they employ in comparison to their total U.S. workforce.

The bill also re-defines the term “exempt H-1B nonimmigrant”. To qualify as an exempt H-1B nonimmigrant, the employee must have an advanced degree (Masters or higher) in a field related to the intended U.S. employment or they must receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least $60,000.

The bill would change the salary requirement for exempt H-1B to employees who receive wages (including cash bonuses) of at least $100,000 per annum. Furthermore, the “$100K per annum” threshold would be adjusted every third fiscal year in accordance with inflation.

Under HB 170, the annual H-1B cap would remain in effect however the current exemption for H-1B applicants with advanced degrees from U.S. universities (i.e. the “Masters Cap”) would be eliminated. The Masters Cap currently provides 20,000 H-1B visas specifically for applicants with U.S. advanced degrees, in addition to the 65,000 H-1B visas that are available for individuals with a Bachelor’s degree or higher.

House Bill 392: “High-Skilled Integrity and Fairness Act of 2017”

HB 392 would require H-1B dependent employers to pay sufficiently high wages to H-1B workers. Dependent employers who do not compensate their H-1B workers above the required wage level would be required to make attestations about the recruitment and non-displacement of U.S. workers.

It re-defines the term “exempt H-1B nonimmigrant” to mean an H-1B nonimmigrant who receives annual wages of more than $130,000 and eliminates exemption for individuals with an advanced degree.

HB 392 also increases Prevailing Wage requirements and prioritizes allocation of H-1B visas based on wages.

In regards to the annual H-1B cap, HB 392 sets aside 20% of annual allocated H-1B visas for small/start-up employers (50 employees or less), and requires petitions filed under this subsection to include an attestation from the petitioner that the H-1B worker will not be placed for more than 30 days at a third party worksite.

The bill also eliminates the need to file amended H-1B petitions with CIS for a worksite change as long as petitioner has secured valid, certified Labor Condition Application (LCA) for the new worksite.

In addition to these changes to the H-1B program, HB 392 also includes the following  provisions impacting foreign workers in the green card process:

• Elimination of the “per country” limitations for employment-based immigrant visas;
• Allowing PERM Labor Certification applicants to use experience gained on-the-job with the sponsoring employer for PERM purposes; and
• Providing work and travel authorization to persons with approved but retrogressed employment-based petitions.

Senate Bill: “H-1B and L-1 Visa Reform Act”     

This bill requires all employers who seek to hire H-1B workers to first make good faith effort to recruit U.S. workers and prohibits the replacement of U.S. workers by H-1B/L-1 visa holders.

It requires USCIS to prioritize annual allocation of H-1Bs to students educated in the U.S. as well as advanced degree holders, those being paid a high wage, and those with valuable skills.

The bill also prohibits companies with more than 50 employees of which at least half are H-1B or L-1 visa holders from hiring additional H-1B workers. It also establishes a wage floor for L-1 visa holders, and a stricter definition for “specialized knowledge” employees.

MVA is closely monitoring the Trump Administration’s immigration policies and pending legislation and will provide updates as information becomes available.