April 18, 2017: Today, President Trump signed a new Executive Order, “Buy American and Hire American.” In the “Hire American” portion of the order, Trump announced that he was directing government to review the current laws governing the H-1B program and suggest changes to prioritize the most skilled and highest paid positions. The President also indicated he was directing federal agencies to review all visa programs and take prompt action to crack down on fraud and abuse in order to protect U.S. workers. Although it was signed with ceremonial flair, the Executive Order will have no immediate impact on H-1Bs. Many of the changes to the H-1B program contemplated by the Administration would require legislative action or rulemaking and would take time to go through the necessary processes. Though additional measures to combat fraud could be implemented more quickly, documented instances of fraud in the H-1B and other temporary visa programs are actually quite low. Most employers that utilize the H-1B program do so honestly and because they need the skills and talent of a particular worker, and those who don’t can be rooted out by the current anti-fraud provisions and programs. In addition, contrary to recent rhetoric, H-1B visas do not generally act as a mechanism to replace American workers. Instead, U.S. businesses use the H-1B to gain access to the sought-after skills of foreign professionals, many of whom graduate from U.S. universities, to complement the U.S. workforce.
March 30, 2017: Remember how, when the Trump administration withdrew its original executive order on immigration and replaced it with a new one, a federal court in Hawaii issued a Temporary Restraining Order (‘TRO’) putting that new order on hold? Well, when the Administration asked Judge Judge Derrick Watson either to dismiss the TRO or narrow its scope, he instead chose to harden it into a more durable form, something called a Preliminary Injunction against the government’s attempt to halt all travel from a number of designated Muslim-majority countries. That sets the stage for the Administration to pursue an appeal to the 9th Circuit – the same appeals court that emphatically rejected the ham-fisted and amateurish original order. Those proceedings are likely to be intriguing – but with the first Executive Order dead on arrival, its replacement remains, for the foreseeable future at least, comatose.
February 7, 2017: Last Friday marked a very big day in US immigration law; that was when the executive order essentially suspending all immigration from seven Muslim-majority countries was placed on hold by a temporary restraining order by a federal judge sitting in Seattle, in response to a lawsuit filed by the Washington State Attorney General. With that temporary restraining order now being challenged by the government in the 9th Circuit Court of Appeals (which sits in San Francisco), and argument being heard today, we are likely to learn the immediate fate of the original executive order in the next 48 hours or so. Whichever way the 9th Circuit rules, expect the losing side to rush the matter to the Supreme Court. We will try to update you here. Momentous times, indeed.