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Are changes coming to the H-1B visa program?

While much of the recent discussion concerning immigration law has necessarily been focused on the absence of clarity surrounding President Trump's so-called travel ban, experts indicate that there are other areas to which his nascent administration, as well as Congress, may soon turn its attention.

Indeed, some political pundits are predicting that the next target of immigration reform efforts will be the H-1B visa program, which, as we've discussed before, currently enables companies to bring 85,000 workers to the U.S. every year to work in a variety of fields, including science and technology.

To recap, the H-1B visa program was initially formed under the Immigration and Nationality Act of 1952 as a means of enabling companies to hire temporary workers from other nations when there was a dearth of qualified applicants here in the U.S.

As for the aforementioned 85,000 limit, it was set by Congress, which has been called upon by the tech sector to increase this number in recent years, while the actual visas are awarded via a lottery system.

The program has undergone something of a major transformation over the years,  with a considerable number of H-1B visas being issued to outsourcing companies that pay their foreign employees considerably less than established corporations, a reality that hasn't sat especially well with lawmakers from both parties.

Indeed, this naturally raises the question as to what action, if any, could be taken courtesy of either the White House or Capitol Hill.

As far as the Trump Administration is concerned, it has yet to publicly declare a stance on this issue. However, a draft executive order has expressed the following three ideas concerning the H-1B visa program:

  • Requiring companies to attempt to hire American workers first
  • Making it harder for certain lower-paying jobs to qualify for H-1B status
  • Prioritizing awarding H-1B visas to the highest-paid foreign workers

It's important to note that while the president does not have unfettered authority concerning immigration (i.e., changing the visa allotment number), the executive branch does theoretically have the authority to introduce some of the measures outlined above.

As far as Congress is concerned, there has been a longstanding push to amend the H-1B visa program.

By way of illustration, consider bills advanced by California Reps. Zoe Lofgren (D) and Darrell Issa (R), with the former's calling for those companies that use the H-1B visa program the most to pay workers at least $130,000 (up from $60,000), or attest that they are not displacing U.S. workers and making a good faith effort to recruit them if paying them less.

In the Senate, meanwhile, legislation is being considered that would forbid businesses from replacing U.S. workers with H-1B visa workers, and grant visa priority to applicants who have earned degrees at U.S. colleges and universities. The proposal is actually the brainchild of Sens. Dick Durbin (D-IL) and Chuck Grassley (R-IA).

What all of this would perhaps seem to suggest is that reform of the H-1B visa program now seems like a very real possibility.

Stay tuned for updates ...     

If you have questions or concerns related to H-1B visas, or other employment matters, please consider speaking with a skilled legal professional.  

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