President Trump Lays Down the Gauntlet on H-1B; Tougher Regulations on the Horizon?

As part of his effort to keep one of his main campaign promises to “look out for the American worker,” President Trump issued an executive order (“EO”) on April 18, 2017 which in part directs the relevant agencies that oversee the U.S. immigration system to come up with new, likely tougher regulations pertaining to all immigration programs, but specifically as to the oft-criticized H-1B program.

Based on his stated commitment that he wants to ensure that the H-1B program is not used to harm the interests of U.S. workers through their replacement by less expensive foreign professional workers in high-paying fields like information technology, President Trump’s order is entitled, "Buy American and Hire American."

In the "Hire American" portion of the EO, President Trump directed the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to develop and propose, as soon as practicable, “new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”

The fact that the President took pains to include that he intends that the new rules will “supercede or revise” existing rules and guidance, is a good indication that he thinks the existing rules are insufficient to achieve his stated goal of the prevention of fraud or abuse of American workers.

With regard to the H-1B program specifically, he directed those same officials to propose, as soon as practicable, “reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” President Trump and many of those who advise him, have made little secret of their belief that the current H-1B program, particularly as used by large consuming H-1B companies from India, are displacing highly paid American workers with less costly foreign labor in order to reduce their costs.

Many who share this opinion have suggested that the program be remodeled such that H-1B visas only be available to graduates of U.S. universities at the masters or above level and those occupying positions that pay at least $130,000 – either result of which would have devastating effect on the major Indian BPOs and U.S. IT companies that heavily rely on H-1B visa holders among their work-force.

A copy of the entire Executive Order can be found here.

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