A draft of a fourth Presidential Executive Order titled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” has been leaked, revealing potential changes for foreign employees and their U.S. employers.

It is important to keep these potentially large changes in perspective. The leaked Executive Order is only a draft and has not yet been finalized or released. Also, many or proposed regulatory changes would require a long process of a notice and comment period and not just the strike of the Presidential pen. Substantive changes would require congressional action. Further, significant changes are likely to be met with considerable resistance by immigrant groups, immigration law peak bodies, and civil liberties advocates, and—even with smooth sailing—most substantial changes are unlikely to be effective for around a year.

The Executive Order dated January 23, 2017 states that “[a] primary factor driving illegal immigration to the United States is the availability of jobs and benefits. Eliminating this jobs magnet will reduce the flow of illegal entries and visa overstays.” It then reveals possible changes to a range of programs with the goal of prioritizing the interests of U.S. workers and “to the maximum degree possible” the jobs, wages, and well-being of those workers. Some of the specifics of the draft order include:
– The Department of Homeland Security (DHS) to review all regulations allowing foreign workers to work in the U.S. and determine which are in violation of immigration laws or “otherwise not in the national interest and should be rescinded”.
– Immediate termination of Parole policies, guidance and programs that do not meet the new administration’s policies. For example, Entrepreneurial Parole may be rescinded.
– Making the H-1B allocation process more efficient and targeting “the best and the brightest.” For example, raising the requirement for H-1B eligibility.
– Increasing site visits for L-1 employers in the short-term and expand the site-visit program generally for all employment-based visa programs.
– Moving to a merit-based immigration system that better serves the “national interest.” Perhaps, this would limit options for family-based immigration.
– Reforming Optional and Curricular Practical Training programs for F-1 foreign students to “prevent the disadvantage of U.S. students in the workforce.” Thus, employment authorization for students in OPT or CPT may be limited.
– Clarifying the allowable activities for persons entering the U.S. on business and tourist visas (i.e. B-1/B-2) and enforcing the restrictions.
– Making the H-2A nonimmigrant agricultural visa program “more efficient.”
– Incentivizing the use of the government’s E-Verify program by U.S. employers by “conditioning” immigration-related benefits on participation in the program. Thus, further expanding E-verify for employers.
– Re-evaluating when a green card becomes “immediately available” and the overall application process for a green card.
– Reforming the E-2 treaty investor visa category and J-1 summer work travel program.
– Imposing reporting requirements on DHS that, amongst other things, detail the effect of the employment of foreign workers on U.S. workers and the number and visa categories of foreign-born persons authorized to work in the U.S.
– Re-starting regular benefit fraud assessments for all immigration categories.

Remember that these are only possible changes in the immigration laws. Nevertheless, we are being proactive for our clients and recommending strategies to protect their workforce to the extent possible. Dayzad Law will continue to monitor any developments on this draft order and to advocate for justice, fairness, and equality for all, including foreign employees and their U.S. employers.