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Draft EO Could Upend Worker Visa Programs, Panicking Some Companies

By Casey C. Sullivan, Esq. on February 07, 2017 | Last updated on March 21, 2019

Just two weeks into his presidency and Donald Trump has moved quickly to upend the status quo when it comes to immigration. That includes, of course, his recent executive order banning entry of refugees and pausing immigration from seven nations. But it doesn't end there. Trump could have his sights set on visas for highly skilled workers as well.

A recently released draft executive order would overhaul the work-visa programs relied on by many industries, leaving some companies worried.

Executive Order Targets Worker Visa Programs

The draft EO, entitled "Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs" takes aim at two commonly used employment-based, non-immigrant visa programs, the H-1B and L-1 visa programs. H-1B visas allow U.S. companies to employ foreign workers in specialized fields and is ubiquitous in tech and other industries. An L-1 visa allows international companies to bring non-citizen employees to the United States for work, for a few months up to a maximum of seven years. The B-1 temporary business visa program, E-2 investor visa program, H2-A agricultural worker program, and student visa programs are all within the scope of the EO.

The EO instructs the Department of Homeland Security to review all regulations regarding foreign workers, to determine which ones are "not in the national interest and should be rescinded," and to initiate rulemaking procedures to do so.

The DHS is also instructed to find ways to make the H-1B visa allocation process "more efficient and ensure that beneficiaries of the program are the best and the brightest." H-1B visas are currently awarded by lottery, though the EO seems to envision a merit-based approach.

The EO would also require the government to increase their site visits under the L-1 visa program and to "reform practical training programs for foreign students to prevent the disadvantaging of U.S. students" and increase monitoring of foreign students. The government would also revisit business and tourist visa programs and review the E-2 investor visa program for foreign entrepreneurs.

Companies React to Draft EO

If implemented, the EO could force some companies to change how they do business. Tech companies the rely heavily on skilled, foreign workers may have to increase their domestic recruiting. Foreign companies, such as Infosys, the IT services company, may have to start prioritizing the hiring of American employees, according to Bloomberg.

That prospect leaves some companies a bit nervous. ""Pretty much all of our clients are concerned about what's been happening since Friday and about the additional leaked memos," Stacey Gartland, partner at San Francisco-based immigration and employment firm Van Der Hout, Brigagliano & Nightingale recently told the Recorder's David Ruiz. "I'm getting between four and five hundred emails a day asking about this kind of thing."

Some companies are even considering challenging any changes. "I can't tell you who," said Jorge Lopez, immigration practice chair at Littler Mendelson, "but I have gotten communications from clients asking me what I'm seeing from other private companies and their involvements in litigation".

In the meantime, substantive changes to central visa programs, such as the H-1B program, may require congressional action, limiting the impact of the EO -- should Trump sign it.

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