During President Trump's first two weeks in office, he signed numerous executive orders, including several controversial immigration-related orders. More changes are potentially on the way, as the administration is now circulating drafts of several more immigration-related orders. One such draft order, entitled "Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs," includes a number of provisions that could potentially restrict employment-based immigration.
It is important to note that this is an unsigned draft order that may never be implemented. Since the Trump administration has repeatedly indicated intent to address employment-based immigration, we believe it is worthwhile to address this executive order, despite the fact that it is only a draft.
In general, the draft order contains vague directions to the Secretaries of Homeland Security and State to "propose for notice and comment" reforms to various visa programs including:
• Terminating all existing parole policies, guidance and programs;
• Restoring the integrity of employment-based nonimmigrant worker programs;
• Considering ways to make H-1B allocation more efficient;
• Performing site visits at places that employ L-1 nonimmigrant workers and expand site visits to cover all employment based visa programs within two years;
• Establishing a commission to move towards a merit-based admissions system;
• Better monitoring of foreign students and reforms of the practical training programs;
• Clarifying what activity is and is not permissible by aliens who enter on tourist visas;
• Ensuring the efficient processing of petitions for the H-2A nonimmigrant agricultural visa;
• Identifying ways to expand the use of E-Verify;
• Aligning with Congressional intent the manner in which the State Department and DHS determine when an immigrant visa is "immediately available";
• Reforming how aliens file for adjustment to lawful permanent residents;
• Reforming the E-2 treaty investor visa category; and
• Reforming the J-1 program.
As noted, many of these provisions give only vague instructions for the Secretaries to propose rules for notice and comment. This means any real changes will have to go through the full regulatory process, so current programs potentially affected by the draft order will remain in place for some time.
Specific changes could include the following:
• Changes to how H-1B visas are allocated;
• A reversal of the increase of OTP STEM extensions to 24 months;
• A reversal of the issuance of work authorizations to certain H-4 visa holders;
• Termination of all existing parole policies including the issuance of advanced parole to DACA recipients and the pending entrepreneur parole program;
• An end to the B-1 in lieu of H-1B and targeting employers who abuse the B-1 visa; and
• An end to the dual-chart visa bulletin system.
It is important to note that this order has not been signed and that the situation may change at any time. We will be certain to provide updates, clarification, and guidance as this matter develops.
For further details on this Executive Order, or on any other immigration matters, please contact a member of our employment-based immigration team.