With three executive orders signed on immigration, we have at least three more to go, that we are aware of. The draft executive orders were leaked through Vox last week. One of them is about making high-skilled work visas restrictive. Here is the draft EO. Below is my summary.
Which visas and programs are affected in this EO?
B1, E2, J, OPT, H1b, L1, H2A (no real details on H2A though), EADS, Parole, EB-AOS, other.
• Paroles: IMMEDIATLEY terminate all existing parole policies- this must mean Parole in Place and Entrepreneur Parole. I have to research whether any other parole categories fall into it- likely DACA advance parole. Will update when I research further.
• H1bs: No immediate changes to H1bs but within 90 days will have report to suggest how to make it efficient and how to allocate visas.
• L1: Within 6 months, start site visits for all L1 visas including those at third party sites
• OPT: Not understanding when but propose for notice and comment (so new FR rule) to REFORM OPT. Reminder that new rules were effective May 10 2016 that made many restrictive changes. So, it is likely that rule will be rescinded and replaced with an even more restrictive one. I cannot imagine that the OPT program will be scrapped altogether (don’t you need Congress for that?).
• B1: Propose new rules for comment to CLARIFY all activities that are and are not allowed on B1/B2 visas. The FAMs already does this. It will be interesting to see how restrictive they make it.
• Everify: Not making it mandatory yet-need congress for that. EO states that DHS provide President within 90 days a list of options for ‘incentivizing and expanding participation by employers including by conditioning, to the maximum extent allowed by law, certain immigration related benefits on participation in E-verify”. I think they mean that if the employer is using Everify, they will be allowed favors/benefits to apply for work visas? Not sure entirely.
• EB backlog: The EO wants DOS to ‘conform’ to congressional intent for when an immigrant visa is immediately available. This must be referring to how the Visa Bulletin was changed in May 2016 to show two dates on the visa bulletin- first- final date of green card issuance and second the date when AOS could be filed. Think they want to go back to the old system. This must be done within 30 days.
• E-2: within 30 days propose for notice and comment regulation to REFORM E2 visa to conform with immigration laws. I believe this already conforms with law. It is likely that the Center for Immigration Studies E2 report may be used for inspiration by the administration. The report suggests increasing investment amount, adding numerical limits, perhaps restricting E2 essential employees.
• J visas: EO wants new regs to for notice and comment to REFORM J-1s. to ‘protect’ US and participating foreign workers. A new reg was proposed just before Obama left office. While I have not read it myself, I am sure this administration will want to revise and restrict those rules.
Other WORRYING items:
1. Initiate investigation re. ANY injury to US workers CAUSED BY THE EMPLOYEMENT in the US of non-immigrant foreign workers or BY THE RECEIPT OF SERVICES from such workers American employers within 18 months. AND
2. Within 9 months of this EO provide a report on ACTUAL or POTENTIAL INJURY to US workers CAUSED, DIRECTLY OR INDIRECTLY by work done by H1B, L1b and B1 visa holders.
3. Create reports twice a year on total EADs issued including list of categories of such EADs and number of people in the US on EAD.
4. Create an advisory committee within one year to analyze ALL immigration policies and move towards merit based system. Merit based system was part of CIR 2013, fyi. I am generally in favor of a Merit-Based system but not at the expense of removing family-based and other categories. US Census reports to include information on immigration status.
5. Create report from DOL detailing effect of immigration (legal and illegal) on wages/US workers.
6. All agencies to rescind programs affected by this order.
H4-EAD: I have received many questions as to whether the H4-EAD rule will live on. The answer is unclear but rests within the paragraph that states all regulations will be reviewed. There will be a report within 90 days reviewing all recent regulations and new rules will be created for any rule that will be changed. If you have an H4-EAD, it’s a good time to explore other options, just in case.
We will have an update when the final EO is signed as it may differ from the draft document.
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