New York Lawyer's Legal Updates

President Trump H1B Executive Order

Author: New York Employment lawyer Alena Shautsova

On April 18,l 2017 President Trump issued yet another Immigration Executive Order, this time concerning work immigration visas, and particular H1B program. An H1B employment visa allows professionals with relevant experience and/or high education to come and work in the United States. A US employer, cannot pay an H1B worker an amount lower than the one determined by the Department of Labor. To obtain an H1B visa, an employer has to submit a detailed application, and demonstrate that it could not find US workers for the same position under the same conditions. In addition, due to the limited amount of visas available, an employer’s application has to be selected during the lottery by USCIS because the number of applications submitted is usually much higher than the number of visas available

Yet, President Trump stated in his order that

Ensuring the Integrity of the Immigration System in Order to "Hire American."  (a)  In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

While we are not aware yet of specific steps that will be undertaken in connection with the implementation of the latest order, we can predict that these steps will target the hiring process, perhaps limiting H1B availability to certain industries, and probably adding extra requirements to the “market testing” condition for the H1B employment. It is also unclear if the implementation of the order will have negative consequences for the recently filed petitions. What is clear, however, is that in the market economy, employers will choose to outsource and find friendlier environment to work in rather than to allocate valuable resources to fight stricter regulations. There is simply no reason why companies that traditionally employ H1B workers would not be able to open their subsidiaries or brunches in the countries with more favorable conditions.

In the light of upcoming changes, to secure one’s future in the United States, a person may consider an O or L1 options or a green card option where applicable. There is no guarantee, of course, that President Trump’s orders will not change these categories as well. We will keep posting updates on our website and Facebook page.

19 April 2017
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