Tuesday, April 25, 2017

WHAT TRUMP CAN AND CANNOT DO TO THE H-1B

The US legal and legislative system framework is one checks and balances.  The legislative branch – the Senate and House of Representatives – creates and passes law, which in most instances must also be signed by a President. 

The executive branch, which now is headed by President Trump, is tasked with administering US federal law.  The President typically works through agencies and departments in order to administer the law.  For instance, the Department of Homeland Security administers laws concerning, among other things, US immigration.  The executive branch’s authority is limited by the underlying law that is passed by Congress. 

(As an aside, the President’s authority to administer law is also limited by the third branch of government—the judiciary.  In the short Trump presidency, we have seen several instances where the judiciary has not backed down from exercising their authority and limiting President Trump’s executive action.)

The scope of an underlying Congressional law is what limits the President.  Accordingly, there are some things that President Trump can consider to do, and other things that he probably cannot do.

Here is our list of H-1B-related changes that President Trump can probably because these actions probably do not exceed the underlying Congressional statute.
  • Revoke H-4 / EAD authorization.  This rule was put in by President Obama’s administration.  
  • Revoke prior Guidance Memoranda that is favorable to the H-1B program.  In fact, he has already started down this path by revoking a 17 year old memorandum on the approvability of Computer Programmers.
  • Increase H-1B employer or employee site visits.  Site visits are clearly within Presidential authority.  Again, the USCIS has recently released a press release notifying US employers of increased site visits.
  • Increase obtuse/harassing RFEs and NOIDs.  The President has indicated to DHS that it would like to see DHS use all its power to interpret rules against H-1B users.
  • Delay Consular approvals under a cloak of “background checks”.  The President generally has wide latitude to process or delay visa approvals.

Our next post will address whether the Trump administration could change the H-1B lottery to a system whereby H-1B lottery slots were awarded based on another criterion, such as the salary offered to the H-1B worker.

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