April 20, 2017

On Tuesday, April 18, the President signed another immigration-related Executive Order, “Buy American, Hire American” amid great fanfare and bluster. It has no immediate impact. What this order does is authorize all the federal agencies involved in the H-1B temporary professional worker program – the Departments of Justice, Labor, State & Homeland Security- to undertake and report on a thorough review of current laws governing the H-1B program and other employment-based visas, and to suggest changes that will re-prioritize work visas for the most skilled and highest paid positions, and recommend enforcement measures to combat fraud and abuse. The H-1B program already has low rates of fraud, as well as some questionable ways of identifying it, per an internal USCIS H-1B fraud referral worksheet released in 2012 as a result of a lawsuit under the Freedom of Information Act, which showed that they regard any company with 25 or fewer employees, less than $10 million in annual revenue, or in business for less than 10 years, as an indicator for fraud, triggering extra scrutiny – USCIS inherently regards all small businesses with suspicion, in addition to looking at true fraud indicators such as whether the beneficiary actually works at the stated location, is paid the stated salary, and has a degree appropriate to the professional job. Public perception is at the other end of the spectrum, dominated by the impression that large US corporations use the program to hire lower-paid foreign workers and make soon-to-be-downsized US staff train their lower-paid replacements, fed by stories such as the Disney disaster and more recently a one-sided expose on 60 Minutes. While a small number of well-publicized incidents have highlighted such abuses, this perception does not take into account that a vast majority of the roughly 27,000 employers who participate in the H-1B program do act in good faith, comply with all requirements including prevailing wages, and undertake significant legal costs and filing fees to bring H-1B workers onboard, then extend and renew their H-1B status, and sponsor some of those workers for permanent residence.
With respect to this Executive Order, and any potential others, it is noteworthy that the President does not actually have authority to make any changes to the H-1B program on his own. Any changes would require either legislative action by Congress or regulatory changes to be implemented by the Agencies, with public notice and comment under the Administrative Procedures Act, so nothing is likely to happen right away. No major changes other than additional fees have been made to the H-1B program since 1990, so there are surely ways in which the H-1B program can be improved to better meet the needs of US employers (A lottery system? Hiring of foreign professionals limited to one week in the year? These are a disservice to the economy) and of the US labor market. They should start with  better enforcement of existing rules, and better understanding of all the industries that make significant use of the H-1B program, including universities & hospitals, and a comprehensive look at the ways in which it does serve the US economy, and could do so more efficiently. When changes do come, they are likely to restrict the most prevalent abuses and support growth at the high end of the program, which has been underserved for years, with all H-1B visas for a fiscal year that has not yet begun used up in a single week, as has happened for the past five years in a row.


This new Executive Order was followed more quietly on Wednesday, April 19, 2017, by a USCIS Policy Memo designating the decision of the Administrative Appeals Office in Matter of O-A-, Inc. as an Adopted Decision. This case is now considered formal guidance, to be applied uniformly by all USCIS officers. The O-A- decision has far more immediate impact than the Executive Order, as it states that provisional certificates from a school submitted in lieu of a diploma must be analyzed on a case-specific basis, to determine whether the beneficiary has in fact completed all substantive requirements necessary to earn the degree, and if the university or college has approved the degree. If the provisional certificate does so demonstrate, then the date of the certificate may be used as the date of degree completion for purposes of calculating post-baccalaureate work experience.  This policy memo recognizes a critical distinction between a provisional certificate issued instead of a diploma for a technical reason, such as a mid-year completion or because the student owed outstanding fees, and a certificate issued to a student who failed to submit a thesis required for that degree. The O-A- decision, and resulting policy memo, address the common circumstance in employment-based green card cases where a worker qualifies as an “Advanced Degree Professional” based on completion of a Bachelor’s degree plus five years of experience in the profession (BA+5). If the worker’s provisional certificate does not support a finding that they had completed all substantive requirements for issuance of a degree, then they cannot be deemed to have begun accruing post-baccalaureate work experience.