H-1B reform: Bye-bye — for now

The failure of the Obamacare repeal effort hampers administration’s H-1B options as well.

The failure of the American Health Care Act last week is set to impact the overall legislative priorities of the new administration, including President Trump’s promise to reform the H-1B visa program.

The AHCA crashed and burned on Friday, with Speaker Paul Ryan, the brain behind the legislation, withdrawing the bill after he failed to muster enough votes for its passage in the US House of Representatives.

Though Trump put on a brave face, assigning blames on initially the House Democrats and later the ultraconservative Freedom Caucus, while absolving himself, the widely held belief on the Capitol Hill is that, after last week’s spectacular stumble, the White House will not be in a position to do heavy-lifting on major legislative initiatives such as tax reform and immigration reform in the near future.

While some actions are expected on both tax reform and immigration, they would not be swift and sweeping, which is what friends and foes alike have been expecting from Trump.

During the campaign and even after his victory, the Republican had stated repeatedly that he would end H-1B abuses. On March 3, 2016, after a Republican primary debate, he vowed to “end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program” without any exceptions.

Now, in the aftermath of his failure, right out of the gate, to get his signature healthcare legislation passed, the president’s options on H-1B reform are limited.

The administration could choose one of three paths to fulfill Trump’s promises on H-1B.

The first one is issuing an executive order.

After the election, addressing his supporters in Iowa in December, Trump promised to sign an executive order on H-1B. “One of my first executive orders will be to ask the Department of Labor to investigate all visa abuses that undermine jobs and wages for the American worker,” he said.

Since his inauguration, Trump has issued some two-dozen executive orders. But not the one he promised on H-1B.

There have been reports about the existence of a draft executive order on H-1B, but the fact that the administration, which has been gung ho on executive orders in other areas, hasn’t pushed the one on the visa program indicates, it still hasn’t come up with an order that will withstand legal challenges. Especially, after federal courts blocked the so-called Muslim ban, the administration is more cautious about the legality of executive orders.

As prominent immigration attorney Sheela Murthy told The American Bazaar, the executive order on H-1B can also be challenged in court. Given the amount of money and the livelihood of people involved, a lawsuit against a potential H-1B executive order is almost a certainty—especially by players in the Indian information technology industry, the biggest beneficiaries of the visa program.

In any case, executive orders are temporary measures and are not substitute for legislation.

The second option for the White House on the H-1B reform is to push it as part of a larger immigration reform proposal. Trump has always seen it that way.

In a document released during the campaign, Trump had listed H-1B reform as part of one of the “three core principles” of his immigration plan — the other two being building a wall along the Mexican border and strict enforcement of immigration laws.

“The influx of foreign workers holds down salaries, keeps unemployment high, and makes it difficult for poor and working class Americans – including immigrants themselves and their children — to earn a middle class wage,” it said.

Increase prevailing wage for H-1B visa holders and making it mandatory for employers to hire American workers first are two of the proposals he put forward.

“More than half of H-1B visas are issued for the program’s lowest allowable wage level, and more than eighty percent for its bottom two,” the document read. “Raising the prevailing wage paid to H-1Bs will force companies to give these coveted entry level jobs to the existing domestic pool of unemployed native and immigrant workers in the U.S., instead of flying in cheaper workers from overseas.”

Trump had a novel suggestion for limiting the number of foreign workers through H-1B: “Petitions for workers should be mailed to the unemployment office, not USCIS.”

However, pushing H-1B as part of the broader immigration legislation carries risks. In all likelihood, it will be dead on arrival because of the toxic nature of several of Trump’s immigration positions. So it is extremely unlikely that Trump could pass an immigration reform bill that will look anything like the one promised during the campaign.

A third option for the administration is to advance the H-1B reforms independently. Already there are a number of bills before Congress seeking to end H-1B abuses, and many of them are bipartisan in nature. One such bill was introduced by Indian American Rep. Ro Khanna, who represents much of Silicon Valley, earlier this month, along with a Democratic and two Republican colleagues.

But problem with these bills is that there is not much tailwind behind any of them at the moment.

It’s not just the failure of the Obamacare “repeal and replace” effort that’s hampering the White House. Since Day 1, the administration has been in perpetual damage control mode. From the false claims about the inauguration crowd size, to FBI Director James Comey’s announcement that the agency is investigating the president for his alleged Russia ties, the administration has been bogged down by a number of controversies, consuming much of its mind share.

So, at this point, it looks like it will be a while before Trump will be able to focus on H-1B — unless something dramatic happens.

(The writer is an information technology entrepreneur based in Northern Virginia.)


  1. noh1bvisas

    the author, how ever hopeful he may be, is wrong.

    1. the new attorney general, sessions, does not need to be directed to investigate abuses. sessions is opposed to h1bs.

    2. trump stopped the premium processing of h1bs.

    3. sec of state tillerson has ordered embassies to slow down visa interviews.

    4. there are still 3 days until the lottery begins. ANYTHING can happen in 3 days.

  2. It is a shame. H-1b changes are badly needed and would help workers (including h-1b workers) and industry alike.

    The problem is that Offshore Outsourcing companies are using more than half of the visa, and are oversubscribing to system, there by a force a lottery for the visas.

    The lottery doesn’t hurt the Offshore Outsourcing companies, who are gaming the system. It hurts small business and startup (the biggest job producers), because they don’t have reliable access to the H-1b visa, and have to kiss the lawyer filing fees good-bye, time, for each unlucky filing.

    They do get their government fees refunded.

    The big tech companies are mum on this, because they all have big contracts with the Offshore Outsourcing companies.

    President Trump could do really helpful thing for the U.S. economy by ending the lottery for H-1b visas and going on any other basis (like salary, auction, first come/first serve). The lottery is, frankly, insane and very bad for the U.S. economy.

    It might not seem like a lot of jobs lost, but you have to tally in the opportunity lost. Currently most H-1b visas go to Offshore Outsourcing companies, who remove 10 jobs from economy for every H-1b visa they take up. The big tech companies use the visa to lower salary and resist hiring Americans. If instead you prioritized on start-ups and small businesses, on a salary basis, you would create 10 jobs for every H-1b you brought in, and you would raise the salary (therefor the economy and tax-base) of the entire country.

    H-1b is a bad mess, it is the reason for the slow growth in the U.S. economy post recession. If Obama had just listened to the little guys who are telling the truth, he could have had a faster/better recovery, Hillary would be President. Instead the democrats listened to the phony tech CEOs who have been covering up the truth about how the H-1b visa is actually used, And it cost them, all of us, dearly.

    • noh1bvisas

      i agree, but it is estimated there are one MILLION active h1bs in the US right now. that’s a lot of jobs.

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