Possible Executive Order Targeting Employment-Based Immigration

President Trump has already signed several immigration-related executive orders, and it appears that more are on the way. One leaked proposed order, entitled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” includes a number of provisions related to the employment-based immigration system.

It is vital to understand that this is an UNCONFIRMED AND UNSIGNED ORDER. At the time of this writing, none of these provisions is in effect. It is possible that this order will never be signed, or that it will be substantially modified prior to being signed. But, because the White House has indicated that it intends to address the employment-based immigration system via executive order, and given that several of the previously leaked executive orders were ultimately signed by President Trump, MurthyDotCom felt it was prudent to provide readers with some insight into this (unconfirmed) draft version of this executive order.

Does the executive order impact H1B workers?

Answer

The (unconfirmed and unsigned) draft version of this executive order would not have a direct impact on the H1B program, but it would pave the way for changes to come in the future. For instance, the order instructs the Secretary of Homeland Security to:

• “in consultation with the Secretaries of State and Labor … restore the integrity of employment-based nonimmigrant worker programs and better protect U.S. and foreign workers affected by those programs”
• “consider ways to make the process for allocating H1B visas more efficient and ensure that beneficiaries of the program are the best and the brightest”
• “… provide recommendations for making U.S. immigration policy better serve the national interest; and to recommend changes to the immigrations [sic] laws to move towards a merit-based system”

These instructions are all relatively vague, and serve to direct the Department of Homeland Security (DHS) to examine potential changes to be made in the future. The order also calls for the Secretary of Labor to issue a report on “… the actual or potential injury to U.S. workers caused … by work performed by nonimmigrant workers in the H1B, L-1, and B-1 visa categories.” Again, this would not directly impact any immigration program. But, it very likely would result in direct action against these programs. But, what type of future regulations or executive actions this may lead to remains to be seen.

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What effect would the executive order have on business / tourist (B-1/B-2) visitors?

Answer

The (unconfirmed and unsigned) draft version directs the DHS to draft a regulation that would clarify the types of activities that are or are not permissible for B-1/B-2 visitors. More specifically, the order seeks to eliminate situations in which a B-1/B-2 is permitted to work while in the United States. It seems reasonable to conclude that this is a call for an end to certain nonimmigrant programs, such as B-1 in lieu of H1B and the use of the B-1 category for domestic servants (e.g., housekeepers, nannies).

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Would this executive order get rid of the H-4 EAD program?

Answer

The (unconfirmed and unsigned) draft executive order calls for the DHS to “review all regulations that allow foreign nationals to work in the United States, determine which of those regulations violate immigration laws or are otherwise not in the national interest and should be rescinded, and propose … a rule … to rescind or modify such regulations.”

The order does not provide any specifics. But, it is reasonable to conclude that the H-4 EAD rule is in jeopardy. That being said, this would have to go through the full regulatory process, so the program will almost certainly remain in effect for at least the time being. (And, of course, as mentioned repeatedly, this is an unconfirmed and unsigned draft version of an executive order.)

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Would this executive order impact the OPT and CPT programs?

Answer

The (unconfirmed and unsigned) draft executive order calls for the DHS to start work on a regulation that would “… reform practical training programs for foreign students to prevent the disadvantaging of U.S. students in the workforce, better protect U.S. and foreign workers affected by such programs, … and improve monitoring of foreign students.” No specifics are provided, but it seems reasonable to conclude that the Trump administration will take steps to curtail at least some of the CPT/OPT benefits currently available to F-1 students.

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What impact would this executive order have on the visa bulletin system?

Answer

The (unconfirmed and unsigned) draft order calls for the Department of State (DOS) and the DHS to “conform to Congressional intent … [in] determin[ing] when an immigrant visa is ‘immediately available.'” This likely means that the order would put an end to the dual-chart visa bulletin system implement in October 2015, which, at times, allows for the filing of an adjustment of status application (form I-485) based on the more favorable ‘dates for filing’ chart.

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Would the order eliminate or reform the E-2 treaty investor visa program?

Answer

The E-2 visa is a nonimmigrant visa category that allows nationals of certain treaty countries who invest a substantial amount of capital in a U.S. enterprise to enter the United States to “develop and direct” the enterprise. The (unconfirmed and unsigned) draft executive order directs the DHS to propose regulatory reforms to the E-2 visa category. Details about the form and intent of any such reforms, however, remain unclear. The reforms could only be implemented via the rulemaking process, including public notice and comment, and therefore would not be immediate.

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Would the executive order prevent a foreign national from entering on advance parole (AP)?

Answer

The (unconfirmed and unsigned) draft order calls for the immediate termination of parole programs that do not comply with the principles laid out in the memo, or that otherwise do not comport with immigration law.

It is not entirely clear what parole programs this is referring to; perhaps it is meant to target programs like the pending entrepreneur parole program discussed in the MurthyDotCom NewsFlash!, Text of Final International Entrepreneur Rule Released (13.Jan.2017). Regardless, it appears that this order is NOT intended to impact the program that provides AP eligibility based on having a pending I-485.

That being said, travel with any form of parole document, including AP, should be taken with caution. In addition, anyone with an AP document who has accumulated 180 days or more of out of status or unauthorized employment, may want to refrain from travel until further notice.

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