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New Executive Order Targets Work Visa Enforcement, H-1Bs

Yesterday afternoon (April 18), Trump signed the “Buy American and Hire American” Executive Order. Mostly concerned with government purchasing practices for US-made goods, this also addressed immigration enforcement and specifically H-1B visas – but only in a very general sense, and with little or no immediate impact.

The Order instructs that “…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.”

With respect to the H-1B program, the EO instructs these same officials to “…suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. There is no immediate change to existing law, policy or practice (which would likely require legislative action by congress or at least formal agency rulemaking, needing publication of a proposed rule and a long comment period leading to eventual publication of a final rule).

A further note on enforcement: much enforcement activity with regard to compliance with H-1B visa requirements is conducted through so-called “site visits” to employer workplaces. The administration has long called for an increase in these enforcement activities, and expansion of site visits to employers using other work visa types. But no further funding for this is contained in the Executive Order.

Ironically, site visits are funded at least in part through the $500 Fraud Detection and Prevention Fee required of initial H-1B and L-1 Petitions. With 199,000 H-1B cap petitions filed this year for the 85,000 available H-1Bs, USCIS is right now turning its attention to returning the 114,000 unselected H-1B filings – and with them, the $57,000,000 in uncashed $500 Fraud Detection and Prevention Fee checks that accompanied those petitions, and could have been used for enforcement purposes.