Here’s the deal with President Trump’s Executive Order on H-1B visas

by Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP

On Tuesday, President Trump signed an Executive Order entitled “Presidential Executive Order on Buy American and Hire American.” Section 5 of the EO directs the Attorney General, and the Secretaries of State, Labor, and Homeland Security to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

(Although the EO directs this to be done “as soon as practicable,” President Trump’s nominee for Secretary of Labor – Alexander Acosta – has not yet been confirmed.)

"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 fill the same job for sometimes less pay,” the President said yesterday at a Snap-On Tools facility in Kenosha, Wisconsin. “This will stop." He added, "Right now, H-1B visas are awarded in a totally random lottery, and that's wrong. Instead, they should be given to the most-skilled and highest-paid applicants, and they should never, ever be used to replace Americans." (The President was quoted in Politico’s “Morning Shift.”)

Are H-1B visas too easy to get?

The reality is that it is already very difficult for U.S. employers to secure H-1B professional work visas for their foreign workers. The U.S. Customs and Immigration Services recently announced that in the first week of this month – the first week in which it accepted petitions for new H-1B “slots” for 2017 – it received 199,000 petitions for only 85,000 “slots.” So, as it has done in past years, the USCIS conducted a “lottery” to randomly select the 85,000 petitions to be processed. The remaining 114,000 petitions will be sent back, unprocessed.

(Even if the petition is accepted for processing, that does not necessarily mean that the petition will be approved by the USCIS.)

Fewer H-1B petitions were filed in 2017 as compared with 2016 and 2015. In April 2016, employers filed 236,000 H-1B petitions. In April 2015, they filed 233,000. Presumably, the decrease in 2017 indicates that employers may be less willing to gamble on the H-1B lottery.

Is a “lottery” the best solution?

The President has said that he thinks H-1B visas should go to the most-skilled, most-highly-compensated workers and should not be used to displace American workers.

Regarding the most-skilled workers, there is already a set-aside of 20,000 of the 85,000 new visas available, for those who have earned advanced degrees from U.S. universities.

Regarding compensation, employers can’t pay H-1B workers less than they pay similarly situated Americans. The regulations require that H-1B workers be paid the higher of the “prevailing wage or actual wage” being paid by the employer. The prevailing wage is set by the U.S. Department of Labor based on data from the Bureau of Labor Statistics.

President Trump is apparently referring to two large India-based IT consulting companies that manage to snag a large percentage of each year’s H-1B quota. These companies can pay their workers less than the actual wage being paid by their clients to the clients’ employees, as long as the consulting companies pay at least the prevailing wage.

Use of contractors, whether they are foreign or U.S. workers – or outsourcing labor to increase flexibility and reduce costs – is not new. But the President is probably correct that the H-1B program should not be used for this purpose.

Some employers may welcome an opportunity to pay more to get truly exceptional foreign workers. But that could create a whole new problem: H-1B workers who are paid more than their American counterparts.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Constangy, Brooks, Smith & Prophete, LLP | Attorney Advertising

Written by:

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.