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Executive order aims to reform specialized visa program


 

 

A recent executive order by President Trump that aims to overhaul a specialized visa program for foreign workers appears to have more bark than bite, immigration experts say.

The order, published April 21 in the Federal Register, calls upon federal agencies to propose new rules, guidance, and reforms to ensure that H-1B visas are granted only to fill the most highly skilled positions. The H-1B visa program allows U.S. employers to temporarily employ highly skilled foreign workers in specialty occupations; foreign physicians and medical students regularly use the program to practice and train in the United States.

Donald J. Trump Gage Skidmore/Wikimedia Commons/CC BY-SA 2.0
Donald J. Trump


In a statement, the White House said the order is intended to prevent companies from abusing the H-1B visa program by replacing American workers with lower-paid foreign workers. While the program is designed to bring in skilled workers, the majority of approved applications are for the two lowest wage levels allowed, according to a White House statement.

“This executive order targets the abusive use of waivers and exceptions that undermine ‘Buy American’ laws meant to promote taxpayer money going to American companies,” according to the statement. “President Trump is making sure the immigration system isn’t abused to displace hard-working American workers for cheaper foreign labor.”

But the executive order will have no immediate effect on the H-1B program or foreign physicians applying for such visas, said Jennifer A. Minear, a Richmond, Va.–based attorney and national treasurer for the American Immigration Lawyers Association.
Jennifer A. Minear
Jennifer A. Minear


“[There is] no immediate impact on the H-1B at all, just a promise to look at the program and ‘crack down’ on the alleged abuse and fraud,” Ms. Minear said in an interview. “I view this as a way of scaring people and looking to sound tough while actually doing nothing to change the system.”

Many of the changes proposed by the Trump administration would require legislation or a lengthy rule-making process, according to Adam Cohen, a Memphis immigration attorney. Some of the proposed changes have included changing the H-1B lottery system, altering the way prevailing wages are calculated, and charging higher processing fees.

“[The executive order] reflects a desire to move toward H-1B reforms but does not signal any immediate or concrete change,” Mr. Cohen said in an interview.

It remains to be seen what the new toughness on potential fraud and abuse may look like, Ms. Minear said. Added enforcement could include additional hurdles during visa processing due to heightened suspicion and review of all H-1B applicants. Depending on the extent of enforcement, it’s possible the changes could end up before a court, she said.

“If the administration oversteps in terms of enforcements and inappropriate scrutinizing of the program, there will be litigation in a heartbeat,” she predicted.

Meanwhile, there is still no word whether U.S. Citizenship and Immigration Services (USCIS) may exempt physicians from the
Adam Cohen
Adam Cohen
newly enacted H-1B premium processing ban.

On April 3, USCIS temporarily suspended its expedited processing of H-1B visas, a program by which applicants could pay for expedited processing and a response within 15 days. Standard processing of H-1B applications takes 6-10 months. USCIS is terminating the expedited reviews for up to 6 months to address long-standing H-1B petitions and to reduce backlogs, according to a March announcement by the agency.

The International Medical Graduate Taskforce and a group of U.S. senators have urged USCIS to exempt physicians from the premium processing ban.

USCIS officials have not said whether the agency will exempt physicians. In an interview, a spokeswoman said the agency will be monitoring the situation during the coming months and will evaluate any time-sensitive impacts prior to the resumption of premium processing services.
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