H-1B Special Occupation Workers

The Executive Order (hereinafter “the Order”) only mentions H-1B visas in the following excerpt “[t]he Secretary of Homeland Security shall consider ways to make the process for allocating H-1B visas more efficient and ensure that beneficiaries of the program are the best and the brightest . . . .”

Although the Executive Order lacks specificity as to how exactly it will affect H-1B visas, the above excerpt read in conjunction with the overarching policy of the Order (which aims prioritizing the protection of U.S. workers) could affect:

• The issuance process of H-1B visas (e.g. suppressing the lottery system to adopt a “more efficient” system);
• Heightening the standards of eligibility so as to make it more difficult for applicants to qualify as Special Occupation Workers;
• Reversing the decision that allows for the spouses of H-1B workers to obtain work authorization.

L-1 Intracompany Transferees

The Order targets L-1 visa holders by requiring that the Secretary of Homeland Security “start performing site visits at places of employment of L-1 nonimmigrant, including third-party worksites where L-1 workers have been placed by the U.S. employers that petitioned for them.”

The provision also calls for the Secretary to “develop a plan to expand the site-visits program within two years to cover all employment-based visa programs.”

Although this provision will not affect per say holders of employment-based visa, it calls for a monitoring system to ensure that foreign workers and U.S. employers comply with already existing immigration laws.

F-1 Foreign Student

Foreign students studying in the U.S. are also directly affected by the Order, which calls for “a regulation that would reform practical training programs for foreign students to prevent the disadvantaging of the U.S. students in the workforce . . .” The Order also calls to “. . . improve monitoring of foreign students.”

“[P]ractical training programs” also known as “OPT” or “CPT” allow foreign students who are studying in the U.S. on a F-1 visa to obtain an employment authorization for twelve months upon graduation. This measure particularly concerns F-1 visa holder who graduated from a U.S. University with a science degree and benefit of an extension up to twenty-four months after their initial 12-month employment authorization. Indeed, a “reform” of such practical training programs could get rid of the twenty-four month period for foreign student with a U.S. degree in science.

J-1

Similarly to the F-1 Student visa program, the Order calls for a reform of the J-1 Exchange Visitors visa “to improve protections of U.S. workers . . .” J-1 visas allow individuals to participate in approved work-and study-based exchange visitor programs. The purpose

B-1 “Temporary Business Visitors” and B2 “Tourist”

The provision that concerns B-1 visas calls for the Secretary to “clarify comprehensively what activity is and is not permissible by aliens who enter on business/tourist visas ensuring that the statutory prohibition on the performance of skilled labor in such status is enforced.”

While the Immigration Nationality Act (INA) already provides a comprehensive but non-exhaustive lists of permissible activities while on a B-1 visa, the above provision calls for a more defined classifications of what activities will be allowed while on a B1/B2 visa.

H-2A Foreign Agricultural Workers

An H2A visa is a temporary work visa for foreign agricultural workers with a job offer for seasonal agricultural work in the US.

It is still unclear how the Order will affect the H-2A visa program as it merely calls for the Secretary to “submit to the President a list of options for ensuring the efficient processing of petitions for the H-2A nonimmigrants agricultural visa program, while maintain programmatic integrity.”

However, this provision read in conjunction with this excerpt: “[t]he unlawful employment of aliens has had a devastating impact on the wages and jobs of American workers, especially low-skilled, teenage, and African-American and Hispanic workers . . .” it appears that the provision may lead to stricter requirements for foreign workers who wish to come to the U.S. for seasonal agricultural work

E-2 Investors

The provision concerning E-2 Investors, who are foreign nationals who have invested a substantial amount of capital in a bona fide enterprise in the U.S., calls for a reform of this particular type of visa category “so that activities allowed for such entrepreneurs confirms to the requirements of the immigration laws.”

Although unclear in its impact, this provision may limit the ranges of activities that entrepreneur can engage in the U.S. while on a E-2 Investor visa.