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.
I have divided these into two groups:
Group 1: Things President Trump Can Just Do
These are all matters of interpretation that do not require going through the formal regulation process.
- Replace the H-1B lottery with one that takes salary and skill into account. I have described this in detail previously. If the tech industry wants to sue again, let them. Put the visas petition selection process on hold until the appeal is finished in, say, three years.
- Make the H-1B data public. The data USCIS gathers on H-1B is a greater secret than the space aliens at Area 51. Currently, only the H-1B labor condition application data from the Department of Labor is publicly available. As horrible as this data is, industry lobbyists have hid behind the canard that you have to look at the actual visa data that, oh by the way, the government does not release.
- Change the labor condition application (LCA) so that it is associated with a single worker. In theory, the LCA is the vehicle in which the employer attests that the hiring of a specific H-1B worker will comply with the law. In reality, this is not the case.
Employers can file blanket LCAs so that a single LCA covers multiple workers. So how can an employer certify that it "has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards" and "has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought" when it is using an LCA covering 100 jobs? Obviously it cannot.
The Department of Labor should change the LCA form to require the employer to identify the specific worker (by name) the certification applies to.
- Change the prevailing wage scales. In 2004, Congress mandated that the Department of Labor provide "at least 4 levels of wages commensurate with experience, education, and the level of supervision." The fine folks in the Bush administration set those levels at the 17th, 34th, 50th, and 67th percentiles. Nothing prevents the Trump administration from setting those at the 50th, 60th, 70th, and 80th percentiles.
- Impose restrictions on H-1B. 8 U.S.C. § 1182(f) provides:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
The sky is the limit on this one. The president could, by proclamation, impose the condition that H-1B workers not adversely affect Americans.
Eliminate the granting of B visas in Lieu of H-1B by the State Department.
Group 2: Things President Trump Would Have to Do Through Regulation
- Shorten the duration of H-1B visas. Currently H-1B visas are valid for three years with a three-year renewal (and some extensions beyond that). That is a creation of regulation. President Trump could eliminate the renewals and even shorten the duration to one or two years. These are supposed to be non-immigrant guest workers after all.
- Change the regulations covering immigration-related discrimination to eliminate the intent requirement and cover disparate impact. The Department of Justice regulations governing immigration-related discrimination are overly narrow and do not reflect the statute. These regulations could be brought in line with other anti-discrimination regulations.
- In its legislative history, Congress said it was exempting aliens employed by universities from the H-1B quotas. In drafting the legislation, Congress used the word "at." The Bush administration interpreted "employed at" as meaning "working at" instead of "employed by." This could have been a Group 1 item but for President Obama's rampage of anti-American-worker regulations in which he codified the Bush interpretation. This means it will take a regulation to undo Obama's damage to Americans.
A complete fix of H-1B will require Congress, something that remains unlikely.
Still, notice breadth of the list above. I have identified actions for the president, Department of Labor, Department of State, Department of Justice, and Department of Homeland Security — and this quick list just scratches the surface of what is possible to address the H-1B mess.