End of Premium Processing for H-1Bs Portends Major Change at USCIS

The recent news that the Trump administration is suspending premium processing for H-1B petitions has hit the mainstream media with force. Even massive replacements of Americans by H-1B workers never get this volume of coverage. This particular action is not in itself significant. However, it portends major change at USICS. (My colleague David North has been thinking along similar lines.)

Some Things Trump Can Do on H-1B

I previously posted a somewhat tongue-in-cheek statement of what Donald Trump could do on H-1B. That proposal was an Obama-Lite. Where Obama claimed authority that did not exist, my example illustrated what was possible using ambiguities in the statute and Chevron deference. It is becoming clear that President Trump only intends to do things administratively that are explicitly authorized by Congress. Here is a sample of things President Trump can do administratively to address the H-1B visa cesspool.

Update on Challenge to H-4 Employment Rule

A couple of people have asked about the status of the challenge to the rule giving employment authorization to H-4 spouses of H-1B visa holders. There seems to be a lot of misinformation going around about it.The brief schedule and oral argument date had been set in the D.C. Circuit Court of Appeals. All that has happened is that the government requested and was granted a delay in the case. The government has been doing the same for a number of immigration-related cases.

Ninth Circuit Ignores Statutes and Precedent

For those of you returning from UFO abductions, President Trump issued an executive order that included a provision that temporarily banned the admission of aliens from seven countries lacking functional governments or, in the case of Iran, is a state sponsor of terrorism. This sparked numerous legal challenges. American law is in such chaos that, if you sue enough times, you can get any outcome.

Where Does the Buck Stop?

Normally when an illegal garbage dump catches fire and causes serious damage to public property, the blame falls on the various government agencies responsible for public health and safety. In 1989, agencies in the State of New Jersey tried to close down an illegal dump in Newark that was underneath I-78 near the airport. They were blocked by a state court judge who held it was a "legitimate enterprise 'that should be encouraged.'" Shortly thereafter, the garbage pile caught fire and caused the bridges above to buckle and the federal government had to spend millions of dollars to repair the damage. New Jersey's chief justice described the episode as a "serious judicial error". Here, the court, not the agencies, suffered the public wrath for causing a disaster that inflicted a traffic nightmare on the state.

Trump Can Fix H-1B Cesspool by Shortening Visas and Eliminating Renewals

There are many things that President Trump can do to tweak the H-1B cesspool. Real reform would have to come from Congress. However, Obama demonstrated that a president may take extreme measures, not even authorized by statute, that many members of Congress approved of. Fortunately, President Trump does not have to venture outside of the statutes to do a little cleanup to the H-1B problem. I have described other such potential actions previously.

Wage-Based Selection of H-1B Visas Could Cut Out the Lowest-Paid Positions

Congress has directed that H-1B visa petitions should be processed in the order in which they are received. But what happens when 236,000 visa petitions show up at USCIS processing centers around the country on one day for 85,000 visas? In that situation it is impossible to identify the order in which the petitions were received. Congress has not enacted a statute to address this situation so that leaves it up to the agency to decide how to handle it. Over the years USCIS has used a random process to select them – a lottery.