Leaked Executive Order Proposes Gutting Employment Based Visa Regulations

A leaked draft Executive Order (EO) dated January 23, 2017 and titled "Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs" appears aimed at gutting many employment based non-immigrant visa programs as we know, them, rescinding the recently adopted entrepreneur parole regulation, ramping up employer enforcement, and generating a stream of new government reports highlighting the number of persons in the US holding immigrant and nonimmigrant employment authorization. The EO has not yet been adopted, nor has the White House confirmed its existence, but it appears authentic and is certainly consistent with Trump's campaign themes.

The leaked draft EO was first reported on Vox.com.

Briefly, if this text is adopted the EO would, among other things:

1. Requires the Secretary of Homeland Security to, within 90 days, complete a review of all employment authorizing regulations to “determine which of those regulations violate the immigration laws or are otherwise not in the national interest and should be rescinded,and propose for notice and comment a rule to rescind or modify such regulations”;
2. Require DHS to "consider ways to make the process for allocating H-lB visas more efficient and ensure that beneficiaries of the program are the best and the brightest", which presumably would lead to an end to the current lottery system at some point;
3. Require DHS, with State and Labor input, to propose new regulations that "restore the integrity of employment-based nonimmigrant worker programs and better protect U.S. and foreign workers affected by those programs";
4. Require DHS within 180 days to expand site visits where L-1 employees work;
5. Require DHS to "develop a plan to expand the site-visit program within two years to cover all employment-based visa programs" (Currently site visits are limited principally to H-1b and L-1 programs, which are funded by the $500 "antifraud" filing fees;
6. Require DHS to establish an advisory committee to "provide recommendations for making U.S. immigration policy better serve the national interest, and to recommend changes to the immigration laws to move towards a merit-based system".
7. Require DHS to rewrite foreign student practical training regulations "to reform practical training programs for foreign students to prevent the disadvantaging of U.S. students in the workforce, better protect U.S. and foreign workers affected by such programs, restore the integrity of student visa programs, ensure compliance, and improve monitoring of foreign students;
8. Require regulations to "clarify comprehensively" the activities permitted on B1/B2 visas to ensure enforcement of prohibitions on employment;
9. Within 90 days, require DHS to issue a report to the President with a list of options for incentivizing and expanding participation by employers in E-Verify, including by conditioning, to the maximum extent allowed by law, certain immigration-related benefits on participation in E-Verify;
10. Require State and DHS to more precisely define immigrant visa category priority dates are considered immediately available, authorizing beneficiaries to file green card and employment authorization applications;
11. Requires State to adopt new rules that would reform the J-1 Summer Work Travel program to improve protections of U.S. workers and participating foreign workers (notably excluding the general J-1 training program, which may fall within the general regulation review requirement)
12. Requries the Secretary of Labor to:
    1. provide within 18 months a report to the President describing the "extent of any injury to U.S. workers caused bythe employment in the United States of foreign workers admitted undernonimmigrant visa programs or by the receipt of services from such foreign workers by American employers; and
    2. provide within 9 months a report on the "actual or potential injury to U.S. workers caused, directly or indirectly, by work performed by nonimmigrant workers in the H-lB, L-1, and B-1 visa categories."

The EO also directs commencement of publication of a variety of reports intended to highlight the numbers of immigrant and nonimmigrant workers in the U.S., and the approvals of new employment authorizing immigration benefits.

In itself, the EO will have limited immediate impact on immigrant and nonimmigrant worker programs, which are codified in statute and regulation, many in place for decades. The EO would put into motion the Trump Administration intention to reassess (and perhaps gut) every permanent and temporary worker program authorized by law. Expect and intense and dramatic debate, and substantial push back from the organized business community.