The latest on the H-1B Executive Order, and why it remains harmless as of the moment

The latest on the H-1B Executive Order, and why it remains harmless as of the moment

Every year, in April, a total of 65,000 H-1B visas are made available to all US employers who want to sponsor foreign workers so that they can fill vacant, industry-crucial job posts in their respective companies. The number of available slots each year suggests that the visa program is very accessible, especially with an additional 20,000 set aside for workers with advanced degrees, meaning a master’s or higher from U.S. institutions. It could be the case if we were in 2010. But the new US president, who won by repeatedly emphasizing that he would bank on his own brand of “America-first policy” to make the country “great” again, believes that doing a bit of a tweaking to the H-1B program could potentially “bring back” local jobs to the Americans, their “rightful” owners.  


Last April, President Trump proved that whatever he had blurted out on the campaign trail was not just pure talk by signing an executive order that directs federal agencies to look at the “abuse” and “fraud” in the immigration system. There’s also a special directive ordering several departments to suggest reforms to the H-1B visa scheme.


The truth is, the skilled worker visa is very in-demand such that this year, the government received 236,000 applications in the first week before deciding it would accept no more. A report by The New York Times showed the truckloads of petitions arriving at a dedicated processing center just a few days after the H-1B visa program opened.

The executive order (EO) is harmless. For now, at least. There are no changes to existing rulings yet, which means all the criteria and required actual/prevailing wage to qualify for the visa remain intact. However, now that the Departments of Labor, State, Justice, and Homeland Security have been given the green light to suggest changes to the visa program, there’s a looming threat that could affect local firms that highly depend on foreign talents to stay competitive, or at least to continue their operations.  


The biggest industry that relies on the H-1B visa is the tech sector. Among them are not just America’s leading tech companies but also the world’s biggest and most popular. The likes of Apple, Google, IBM, Amazon, Facebook, and Oracle are its biggest beneficiaries, and they are big enough to offer overseas applicants six figures, a reality refuting Trump’s claim that there are companies that are using this visa to save cash by paying low wages to immigrants (although there could be a tinge of truth in it as per The Huffington Post’s report).


At first glance, the executive order’s intentions are nice. A complete overhaul of the program will put an end to the abusive practice of hiring a non-immigrant to avoid paying an American worker according to what the law has prescribed.  It would grant H-1B visas to the most-skilled workers and not only to the skilled, competent ones, meaning, “the most educated” ones who deserve the American rate. But if this idea is juxtaposed to the EO’s moniker—“Buy American and Hire American”—then there’s a problem. Many critics of the move to seek ways to alter the existing provisions of the programs say that this is no different from the first two EOs that Trump signed, that it aims to prohibit immigrants from getting the jobs that are supposed to be offered to the locals.


Experts are divided on the issue, too, perhaps because the visa program as a problem is also a divided matter, to begin with. On the one side of the equation are the patriots thinking that it is simply a predicament that aggravates the influx of immigrants into the country, while on the other are the companies believing that it helps the local labor market to stay up and running, needless to mention contribute to the US’s massive economy.


If there’s one good thing that comes out of this move then it is the unearthing of a long-ignored debate that tries to make sense of the supposed existing labor shortage in the country: Are the Americans really incapable of doing these so-called high-skill jobs or is it simply an issue of local companies exploiting the program’s loophole to save a dime?


Hence, the solution must be a win-win one for both parties. In case the pro-Americans win the argument, they should prepare themselves to be trained to prove that they can do the “immigrants’ jobs.”  Does America have enough mathematicians, engineers, tech geniuses, and scientists in case this happens?  Conversely, the local companies must also start looking at their finances because it will be time to recalibrate the payroll using the legal, American approach.


As per the H-1B visa’s future, we still have to wait on the four departments’ recommendations. This is just the beginning and time will tell whether the H-1B visa will withstand the proposed changes.


If you have questions about how this Executive Order might affect your visa application, as well as your ability to travel in and out of the United States, speak with one of our seasoned migration lawyers. Our experienced lawyers have provided professional advice to thousands to immigrants, seeking assistance with their visas to the US.


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