Trump's work-in-progress work-visa proposal: What we do and don't know

A draft of an executive order issued by the Trump administration is raising questions among the thousands of immigrant STEM workers it could potentially impact.

Following through on his campaign promise to create more jobs for American workers, President Trump seeks to use the order to limit the number of immigrant employees that technology companies hire through work-visa programs. A draft of the proposal, which was leaked by Vox and can be found here, states “visa programs for foreign workers … should be administered in a manner that protects the civil rights of American workers and current lawful residents, and that prioritizes the protection of American workers -- our forgotten working people -- and the jobs they hold.” 

The work-visa programs that Trump seeks to upend — the H-1B, L-1, E-2 and B1 programs, more specifically — are used by technology companies to fill tens of thousands of both high and lower-skill jobs annually. While it is still unclear how the order could change the way that tech giants like Apple, Google and Microsoft recruit talent, it is also creating confusion among immigrant tech workers who are not sure who the executive order would impact if implemented.

Here are just a few comments we are seeing across LinkedIn questioning what the proposed order could mean:

To get a better sense of what the drafted proposal really means for tech employees and employers alike, I interviewed Daniel Costa, the director of immigration law and policy research at the Economic Policy Institute.

Edited excerpts:

Caroline Fairchild: What does this drafted executive order mean and who will it most impact?

Daniel Costa: The draft executive order – which of course has not been signed or come into effect yet – sets out a series of instructions from the president to his federal agencies, which relate mostly to nonimmigrant work-visa programs – also known as “guestworker” or temporary foreign worker programs. These are considered “nonimmigrant” because they are temporary, as opposed to permanent resident visas (aka green cards). Most of the directives are vague, while a few are specific, and one section relates to increasing transparency in temporary foreign worker programs.

CF: What happens if the order is signed?

DC: If the order is signed it will mostly impact the companies that hire and employ temporary foreign workers in skilled visa programs, like the H-1B and L-1 visa. Unfortunately there is virtually nothing in there that will impact companies that hire temporary foreign workers through the main visa programs that facilitate hiring lesser-skilled, low-wage workers – the H-2A and H-2B visa programs – which are used to hire workers to do agricultural work on farms, or for landscaping or construction jobs, etc., and where countless worker abuses and human trafficking have occurred. However, one low-wage temporary visa program, the Summer Work Travel program which is run by the State Department, may get a new set of rules, which are much needed, in my opinion, based on the multiple scandals that have occurred.

CF: How could it potentially change how American tech companies recruit talent?

DC: At present, tech companies who hire skilled guestworkers in most cases don’t have to recruit and hire U.S. workers before hiring a temporary foreign worker, and there’s nothing in the draft that proposes to change that, and it doesn’t reduce the numbers of available visas (and some visas like the L-1 aren’t numerically limited).

There is an instruction to the Secretary of Homeland Security to “propose for notice and comment a regulation (or make changes to policy or operations, as appropriate) to restore the integrity of employment–based nonimmigrant worker programs and better protect U.S. and foreign workers affected by those programs” – it’s possible that new regulations could increase oversight or add additional scrutiny to visa applications under certain criteria. Federal agencies could also reinterpret existing law in a way that makes it more difficult for employers to exploit American or migrant workers. But it’s much too early to tell how this will go.

CF: Historically, have tech companies misused any of these work-visa programs? DC: The draft order directs DHS to publish new regulations on B-1 business visitor and B-2 tourist visas, to clarify what kinds of work can or can’t be done while someone is in the United States on one of those visas. B visas were at issue when the IT outsourcing company Infosys was caught misusing them, and ended up having to pay the largest immigration fine in history: $34 million. B visas generally prohibit employment, therefore tech companies shouldn’t have much to worry about if they’re using them properly. But since the Infosys fine, other companies have misused B visas and the government hasn’t done much to stop them.

CF: What about the OPT program?

DC: If companies are recruiting foreign students on F-1 visas and employing them through the Optional Practical Training (OPT) program, they may need to prepare for some changes if the draft order gets signed and DHS proposes new regulations. The OPT program as currently structured doesn’t offer any real worker protections to the foreign students who work at U.S. companies (meaning they can often be paid less than the minimum wage), and employers are exempt from paying payroll taxes on OPT workers which makes them cheaper to hire than new American college graduates. Therefore, the OPT program is ripe for reform but the Trump administration hasn’t signaled which reforms it has in mind, and the language in the draft order doesn’t reveal much. But since the OPT program was created entirely by administrative regulations, President Trump can make sweeping changes to it without needing approval from Congress, including eliminating it entirely. 

CF: The Trump administration states in the draft that “Visa programs for foreign workers … should be administered in a manner that protects the civil rights of American workers." From your understanding of the policy, will it do that? 

DC: It is true that temporary work-visa programs have not been working well for U.S. workers – but they’ve also been terrible in many cases for the foreign workers who work in the United States on these visas. When it comes to visas for skilled workers, U.S. workers sometimes lose out because they can (apparently, legally) be replaced by much lower paid temporary foreign workers on H-1B or L-1 visas. And because tech employers don’t have to first recruit American workers before hiring a worker on a temporary visa, it denies U.S. workers a shot at getting decent-paying tech jobs in their own communities. In addition, even when the H-1B program isn’t used to replace an incumbent U.S. worker – the way H-1B wage rules are set up allows the H-1B workers who are hired to be paid much less than similarly situated U.S. workers – in other words, many H-1B workers are underpaid. And there have been numerous reported cases of human trafficking and exploitation facilitated through the H-1B visa. (The problems are similar with low-wage temporary visa programs but I won’t go into that here.)

CF: So with the drafted order fix these problems?

The draft executive order won’t entirely fix these problems—that will require an act of Congress and signature by the president. The solutions needed are actually quite simple though – but haven’t been able to pass in Congress – in a nutshell, they are:

• Require employers to recruit U.S. workers and offer jobs to equally or better qualified U.S. workers before hiring an H-1B worker
• Prohibit employers from paying less than the local average wage for jobs to the H-1B workers they hire and
• Provide H-1B workers with adequate protections from retaliation if they speak out about employer abuses – since if they complain and get fired, they become instantly deportable because their visas are tied to a single employer.

CF: Could anything in the drafted order help?

DC: But some of what’s in the draft memo – if implemented and enforced properly – could help improve things for U.S. workers and foreign workers alike. The proposed auditing of employers who hire workers on temporary visas could help ensure that foreign workers are getting paid what they were promised and are employed under fair working conditions. The section on transparency would require the release of key immigration data, which would allow more and better research to be conducted on the impact of temporary foreign worker programs on the U.S. economy and labor market, which would in turn inform the debate among the policymakers and the public.

CF: What about when it comes to the H-1B work-visa program specifically?

DC: The memo directs DHS to “consider ways to make the process for allocating H-1B visas more efficient and ensure that beneficiaries of the program are the best and brightest.” This likely alludes to the H-1B random lottery that is used to allocate visas because there are usually more applications than visa slots available. A significant share of H-1B visas go to companies that do IT consulting and outsourcing, including all of the top 10 H-1B employers, and those 10 companies used up 30 percent of the annual quota of 85,000 in 2014. The IT outsourcing companies also pay their H-1B workers close to the lowest wages allowed by law, and some of them have been involved in replacing U.S. workers with cheaper H-1B workers (like what happened at Disney and Southern California Edison). An alternative way to allocate the visas so that fewer are used in this way is this way is to prioritize H-1B applications that pay higher wages, for example. But this would likely require legislation. A good model for this can be found in the bipartisan H-1B legislation proposed by Senators Durbin and Grassley.

CF: So what's next?

DC: It’s reasonable to assume that there will be future implementation memos that reveal more details about how these proposals will work in practice, and the memo calls for a number of new regulations to be proposed and/or rescinded. If and when those are published, they’ll offer us a much clearer picture of the ultimate impact of this draft executive order.

Update: This story has been updated to include information about the Optional Practical Training and policy implementation.