Mar 16 2020
The Novel Coronavirus has wreaked havoc on not just the human respiratory system, but entire economies, as a result of fear-induced aversion to public gatherings, including and especially the workplace. The U.S. government infrastructure is faced with an unprecedented need to accommodate to this pandemic in order to slow its impact. For the first time, the Office of Personnel Management is urging federal agencies to permit remote work for its employees.
Now is as good a time as any for the U.S. Citizenship and Immigration Service (USCIS) to consider revising its processing of civil immigration matters. Our top proposals include:
1. Revising I-9 Rules for Employers
Currently, USCIS rules require employers to verify every single U.S. employee’s work authorization by completing a Form I-9. Employers are required by law to verify and physically inspect the authenticity of the new employee’s work and identity documents.
Assuming we don’t head straight into a recession after this pandemic, and employers continue to hire, USCIS must come up with a novel way to permit employers to remotely verify the work authorization of its workforce. Once such method would be to allow teleconferencing during the I-9 document inspection and allowing employees to fax or email in documents to employers for record-keeping.
2. Accepting Wider Online Petition and Application Submission
Although Ellis was a force to be reckoned with on the TV show Grey’s Anatomy, the same cannot be said for the ELIS system created by USCIS in 2013. Sadly, the Electronic Immigration System had such high hopes and dreams yet it was shuttered fairly quickly, without much fanfare, to be replaced by a new system, myUSCIS, which currently only allows a handful of applications to be submitted online.
USCIS should further enhance the system to provide a wider availability of applications and petitions to be submitted online, with the option for payments to be remitted simultaneously.
3. Moving to Digital Confirmations in Lieu of Paper Notices
While Form I-797 Notices of Actions are as varied as the colors in the rainbow, does this digital revolution still mandate paper-only interactions?
USCIS should permit applicants and petitioners the option of receiving digital only receipts, notices and approvals (or at least provide a portal where this documentation can be downloaded). Considering the USCIS already produces barcoded government notices that contains critical metadata when scanned, there is simply no reason not to move to a digital-only medium, if an applicant or petitioner affirmatively requests. This would also further result in a savings in mailing costs as well as a savings in time to print and send physical documents.
4. Eliminating In-Person Employment-Based Greencard Interviews
Counsel wasn’t thrilled when USCIS announced in 2017 it would begin requiring the interviewing of foreigners applying for their greencards based on employment. The rationale was that USCIS had already reviewed the paperwork, and background checks were already conducted, and the fact the foreigner already was employed (or had a job waiting for him/her/them), the interview was excessive and served to delay the process, as well as create a backlog. (A backlog it has become indeed!)
USCIS’ limited resources would be better served eliminating this in-person interviewing requirement altogether, and, like the olden days, reserve the right to an in-person interview should the facts of the application necessitate it. Given the wide work portability rules, what legitimate interest does the employment-based interview serve anyway?
5. Allowing Digital RFE Responses
Currently, when USCIS issues a request for evidence, a response exceeding 25 pages normally must be filed via hard copy. The irony is that USCIS will typically fax this request for additional evidence and then ask for the response to be submitted in hard copy.
Oh dear…. Need I say more?
6. Permitting FOIA responses to be downloaded digitally
It is not uncommon for USCIS to respond to a FOIA by providing a compact disc. (Cue the forehead slapping emoji here…) Why?
If the data has been saved digitally on a CD, why spend additional funds and time to physically mail it? Why not permit a digital download from a secure portal?
7. Enabling Digital Expedite Requests
Today, a request to expect an advance parole, after it has already been filed and pending with USCIS, must be made affirmatively by phone whereby USCIS will then call the applicant to schedule an appointment locally (if the applicant is lucky enough) …. For those of you who have never called the USCIS 800 phone number, it is truly a unique way to spend an entire afternoon.
If only there was a mechanism online that allowed applicants to schedule an appointment locally at the USCIS office closest to them…. Wait, there used to be that system called INFOPass.
We don’t need to bring back INFOPass in its earlier form, USCIS could certainly develop an INFOPass Version 2.0 to enable applicants needing emergency travel request to request so digitally, provide justification online.
Also, USCIS should enable an online expedite process for other processes. Currently, for any matters where premium processing is allowed, petitioners must do so via hard copy and send in a check or money order.
Yawn… can USCIS please implement an online expedite process where the premium processing fee could also be paid online?
8. Permit Teleconferencing of Interviews
Prior to the live rollout of the H-1B online lottery registration, Counsel attended no fewer than 4 webinars presented by USCIS…. So there is proof that USCIS is aware that web conferencing technology (including Live YouTube) exists and can be successfully deployed.
USCIS should consider providing teleconferencing, as an option, to petitioners, applicants and beneficiaries on matters that normally require an in-person interview, especially in low-risk, no-fraud, clearly approvable cases.
Ann Cun is the Managing Attorney at Accel Visa Attorneys, PC, a U.S. immigration and nationality law practice based in San Leandro, California. During this pandemic, Ann has been taking prudent measures to ensure the well being of her employees and help the firm’s clients navigate the evolving immigration landscape. Ann can be reached at accelvisa.com.
Feb 14 2020
The year 2020 was a groundbreaking year for the Oscars because the movie Parasite took home the most awards; Best Picture, Best Directing, Best International Feature Film and Best Writing (Original Screenplay). As writer, director and producer, South Korean national Bong Joon Ho received a full sweep of honors. (It is also notable that Parasite received BAFTA awards for Best Foreign Language Film, Best Original Screenplay, and nominated for Best Film and Best Direction).
As an immigration attorney, all I could think was how Bong Joon Ho could easily qualify for an Extraordinary Ability visa (O-1 visa and EB-1 visa) to work in the U.S. For the uninitiated, both the O-1 and the EB-1 visas can be obtained for individuals who have received a major, international award such as a Nobel.
In my experience, receipt of an Oscar, Emmy, Grammy, Tony or similar type award can usually qualify an individual for an O-1 or EB-1 visa since most adjudicating immigration officers consider these awards to be major, and international in scope. Ironically, Boon Joon Ho himself, in an October 2019 interview with Vulture magazine, stated that, “The Oscars are not an international film festival. They’re very local.” In other words, the Oscar awards was a local event, made and produced for and by Americans. Perhaps his statement that the Oscars are not an international event may have merit.
While adjudicating immigration officers in the U.S. would most likely interpret the receipt and/or nomination of an Oscar award as having met the threshold for an O-1 visa, it’s been our experience that officers examine awards from other countries with more scrutiny.
Not All Awards Are Equal
Some awards are well documented and have a long history, such as Nobel, Fields Medal, BAFTAs, Oscars and many others. However, the lesser known awards, particularly those that are regional or industry-specific, may be more difficult to include as evidence to support an O-1 visa. Adjudicating officers have no way to determine whether an award is truly prestigious and elevates the individual above her peers without the proper context such as how the award was judged, by whom, how many entered, and how often the award was issued.
Often, I ask the individual, what was so different about this award? Did the award elevate the individual’s status, or was the award given as a result of the individual’s stature in the community? Ask these questions and you may find very interesting responses that can further guide you on the eligibility for an O-1.
Yet, even with the proper context, awards from countries that have better infrastructure and the luxury to develop a robust cultural and economic offering may fare better than awards from countries that are lacking in these areas. This may be due to lack of available documentation, or simple outdated prejudices. Therefore, it’s important for individuals to carefully consider their qualifications in the greater context of the O-1 regulations.
Curious to learn more about preparing a successful O-1 visa? Contact our experienced team for more details here.
Jan 30 2020
In the midst of the Trump Administration’s crackdown on immigration to the U.S., for certain foreign nations, the E-2 visa remains one of the most popular avenues to obtain authorization to work, invest and reside in the U.S. (Curious if your country of nationality is on the list of treaty nations with the U.S.? Check it out here.)
What makes the E-2 Investor Visa So Attractive?
First, the E-2 Investor Visa classification offers investors lots of freedom to develop their business model. While most consulates and embassies around the world have specific guidelines on how to prepare the application, there are no strict rules about the investor’s business model, per se. This means the average café owner is just as eligible to obtain an E-2 Investor Visa as a well-versed venture capitalist flush with millions of dollars in funding, ready to invest in their next venture.
Second, the E-2 Investor can submit their application at any time of the year, so long as the investor is ready to appear for their interview. This year-round flexibility can be extremely beneficial, especially for investors who must schedule around their children’s school year.
Finally, most E-2 Investor Visa applicants have the chance to interface directly with a consular officer reviewing the application (when the application has been lodged with the consulate). As a result, that face-to-face interview can prove to be a great opportunity to describe and explain their business model.
How to Get your E-2 Investor Visa Application Approved?
Speaking of face-to-face interactions; how do E-2 investors get their applications approved?
According to a government report in 2019, the most common challenges consular officers struggled with during an E-2 interview, were 1) the unfamiliarity of the new business venture and 2) how to assess whether the investment met the “substantial” investment test.
1. Explaining Your New Business Venture
Depending on how busy the consulate is, consular officers may be reviewing hundreds or thousands of E-2 investor visa applications each year. Ensuring your application is approvable requires a clean and clear explanation of your business model because it helps the consular officer understand the application. If they understand it, they are more likely to approve the application. Is the description about the E-2 business clear and concise? Consider what questions a consular officer may ask about the business model and then ensure those questions are very obviously answered in your application.
2. Investment Amount is Substantial
All E-2 investor visa applicants have the burden of proving to the consulate officer that they have invested a “substantial” amount of money in the business. How much is a “substantial” amount?
In practical terms, “substantial” means an amount of money to ensure the business can generate enough profit to support hiring additional workers and grow the company in the U.S. The consular officer will look at the actual amount invested (non-refundable) and then analyze how much money it will take for the business to likely succeed (make a profit). For new business ventures, this can be especially challenging to prove, which is why it is very critical to ensure the application very clearly and confidently explains how the business will operate.
Pro-Tip for E-2 Investor Visa Applicants
In our experience, new businesses that may have complicated funding structures, such as capital funding in the form of SAFEs, other convertible promissory notes, bridge loans or other capitalization methods can easily add complications to an E-2 investor visa application. Therefore, it is important for investors to understand how their capitalization methods may complicate their applications, especially since a moderate increase in E-2 visa application denials have also been trending from 2014 to the present.
Foreign investors can reduce the risk of being denied by seeking counsel from experienced E-2 visa attorneys. Curious if your E-2 business model is viable for an E-2 application? Contact Accel Visa Attorneys for a consultation on your E-2 business idea here.
Jul 11 2017
The U.S. Citizenship and Immigration Service officially released its notice to delay the implementation of the International Entrepreneur Rule to March 14, 2018. The Notice seeks public comment on the prospect of rescinding the plan.
Had the plan been left to go live on July 17, 2017 this year, entrepreneurs seeking to remain in the U.S. who were poised start hiring U.S. workers could stay in the U.S. to run their enterprises for 30 months. If their start-ups were successful during that time period, they could renew for an additional 30 more months. They could bring their spouses and children to the U.S. to develop their business and expand their operations. This program would have been the closest solution to the lack of a start-up visa the last five sessions Congress have failed to pass into law.
Meanwhile, Canada, Australia, the United Kingdom, Chile, Brazil, France and many other countries are all too eager to provide start-up packages for entrepreneurs willing to relocate their new endeavors there. Though, the reality is that there is only one Silicon Valley and the start-up community is inherently different and unique to the Bay Area. Many entrepreneurs come to the Bay Area to make connections in hopes of being the next big unicorn.
It’s disappointing that the Notice that was published today, fails in an epic way, to explain exactly what aspects of the International Entrepreneur Rule would have a significantly negative impact on job creation or security in the U.S. Rather, the Service explains that logistically, it would be unfair to expend USCIS resources beginning July 17th if the rule were to be ultimately scrapped down the road. Unsurprisingly, the Trump Administration remains conveniently silent on this matter.
One can only hope that a newer, better International Entrepreneur Rule will take it’s place but if the rewrite of the current Health Care bill is any indication of progress, we’re in for a long ride!
Jun 27 2017
Yesterday, the U.S. Supreme Court issued a decision to temporarily allow limited portions of President Trump’s Travel Ban to remain in effect. Individuals who fail to demonstrate a “bona fide relationship with any person or entity in the United States” would be temporarily blocked from receiving a visa if they are citizens or nationals of the six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen). Bona fide relationships include individuals who are coming here for school, for work, or have substantial connections to existing family members in the United States.
What does this mean for folks with no previously established connection to family, school or work in the U.S.? If they are nationals from any of the above countries, there’s a good chance their visa applications would be halted for the time being.
The unsigned Supreme Court opinion also provides a glimpse into the near future into the direction the Court may lean when making a final decision on the constitutionality of the President’s Executive Order. The Court will hear oral arguments later this October but in its recent opinion yesterday, it indicated agreement with the lower courts so far. If the travel ban remains in effect at that time, we’ll see a real show-down between the President and the Supreme Court. Stay tuned!
Jun 23 2017
This week is Tech Summit week at the White House, where many top-level officials from leading technology companies are convening with the President and his team to discuss ways to modernize the government. Yet, amidst the talk of modernization, the White House had recently pulled the plug on a scrappy program that would have created thousands of jobs in the U.S.: Parole for Entrepreneurs. While the program technically is still on the books, its fate is appearing less and less vibrant as the days pass with only matter of time before its likely to be scrapped entirely.
Although far from the perfect, the Parole for Entrepreneurs program would have allowed foreign entrepreneurs who were ramping up business to stay in the U.S. to run their company. If they met goals of creating more jobs for U.S. workers, they would be eligible to renew for additional 2.5 years. (Read more about it here.)
On May 25, 2017, the final rule was pushed back to the Office of Management Budget (OMB) for further review by the Administration. The OMB regularly reviews draft regulations prior to it becoming a final rule and rolled out to the public in order to determine economic and other impacts to stakeholders, as well as consistently with furthering government policies.
On June 16, 2017, the OMB concluded its review of the Parole for Entrepreneur program.
During the course of OIRA’s review of a draft regulation, the Administrator may decide to send a letter to the agency that returns the rule for reconsideration. Such a return may occur if the quality of the agency’s analyses is inadequate, if the regulatory standards adopted are not justified by the analyses, if the rule is not consistent with the regulatory principles stated in EO 12866 or with the President’s policies and priorities, or if the rule is not compatible with other Executive Orders or statutes. Such a return does not necessarily imply that either OIRA or OMB is opposed to the draft rule. Rather, the return letter explains why OIRA believes that the rulemaking would benefit from further consideration by the agency.
It’s particularly telling that no “return letter” was issued to USCIS on any potential negative impact by the program. Having returned the rule back to the USCIS, time will tell if the program will be rolled out. Rumors indicate that the Trump Administration plans to scrap the program, but not without strong comment from at least four senators Republication Senators: Orrin Hatch (R-UT), Jeff Flake (R-AZ), John McCain (R-AZ) and Jerry Moran (R-KS).
In their June 20, 2017 letter, the four Senators site to Canada and France as welcoming foreign entrepreneurs to their countries. Canada’s Immigration and Citizenship bureau has already implemented a similar program. France also has implemented a similar program for startups call French Tech Ticket.
What’s particularly confounding about the Administration’s pullback is that the Parole for Entrepreneur program aims to promote and produce U.S. jobs, goals that are entirely consistent with the Administration’s stated policy. It’s no secret that small businesses are the bulwark of job creators in the U.S., according to the Small Business Administration. The reality is that while other countries may offer a friendly process to start up a company, there is only one Silicon Valley and it sits in the Bay Area and that’s where most Entrepreneurs want to be.
For this Administration to stay true to its stated policy, it must develop an even better program, and soon, if the current one is to be abandoned. What do you think? Is the Administration being fair to foreign entrepreneurs? We’d love to hear your opinion on this matter.
Jun 02 2017
Visa Pit Stop is excited to celebrate Immigrant Heritage Month June 2017 by supporting the #IStandWithImmigrants Campaign. Our sponsoring law firm, Accel Visa Attorneys, PC is Signatory Partner for the #IStandWithImmigrants Campaign. Managing Attorney Ann Cun is a former war refugee, an immigrant to the U.S., and a community volunteer.
You don’t have to be an immigrant to reflect on the many ways immigration has shaped and changed the U.S. There are many ways to show your support of immigrants in this country. The simplest form is just through active listening and showing empathy for the plight of others.
Many times, in local conversations, it’s easy for folks to inject “I support immigration, but only for those who came legally.” The reality though, is that the U.S. immigration system is so convoluted. You could have legal status one day and lose it the next. You could have no status upon entry but gain legal status at a future date. It may even surprise people to learn that less than 100 years ago, unless you were a citizen of China, you could emigrate to the U.S. easily. In fact, with the exception of Chinese exclusionary laws, immigration quotas based on nationality was not enacted until 1920. It is therefore very disconcerting the way our existing immigration framework has evolved from 100 years ago. In fact, as our current Presdient might even call it, “It’s been a disaster!”
- An individual can enter the U.S. legally for employment, and through no fault of her own, find herself out of status.
- Folks may arrive without documentation, or the wrong documentation, seeking refuge in the U.S., yet be able to apply for permanent legal status.
- An individual can enter the U.S. without proper documentation, yet be able to apply for permanent legal status through family sponsorship.
- For young children brought to this country, the U.S. is the only country they have known. Our federal laws require that states provide them with an education.
- Farmers consistently finds themselves in a maze of immigration rules that make it impossible to hire enough workers to harvest at the right time of the season.
- For work-based sponsorship, Chinese and Indian foreigners consistently have to wait years for a greencard while their counterparts from other countries have little to no waiting periods.
- For family-based sponsorship, individuals from Mexico and Asian countries consistently must wait decades, as compared to their counterparts from the rest of the world who have little to no waiting periods.
Looking at the history of how the U.S. was founded by immigrants, it is astonishing 2017 marks only the fourth annual celebration of Immigrant Heritage Month! This country was founded by immigrants. Immigrants contribute in many ways to our U.S. economy, community and values. We at Visa Pit Stop and Accel Visa Attorneys, PC are excited to stand up with immigrants and show our support for the many contributions by immigrants in this country!
Apr 25 2017
Today, we bring you a guest article authored by Shail Sturm, Manager at Park Evaluations, to discuss how credential evaluations are an important component in preparing successful immigration petitions to U.S. immigration.
In the context of immigration, foreign academic credential evaluators are critical in evaluating higher education degrees obtained abroad. Some of the most popular work-based visas require educational degrees. A bachelor’s degree obtained in one country may not always equate to a bachelor’s degree obtained in the U.S. Today, we demystify the evaluation process by looking at the tools evaluators use to assess academic equivalency to a U.S. bachelor’s degree.
UNITED STATES BENCHMARK
In the U.S., primary and secondary school education starts with Kindergarten and lasts through 12 levels (or grades). The final four years (9th-12th grades) are called “high school.” Beyond that, students pursue secondary education at a two-year college, or four-year college or university. The standard undergraduate bachelor’s degree usually requires four years of undergraduate study. Therefore, most foreign credentials are based on the four-year standard bachelor’s degree in the U.S.
Foreign bachelor’s degrees that are a three-year program are usually not sufficient to be evaluated as the equivalent of a U.S. bachelor’s degree. This is the common problem encountered with Indian bachelor’s degrees. However, some three-year academic programs may equate to a U.S. bachelor’s degree. For instance, a three-year degree from the United Kingdom, or Israel, can equate to a U.S. bachelor’s degree if you factor in the total requisite years of study for entry into the three-year program. As foreign academic credential evaluators, we have precisely some of those tools at our disposal.
AACRAO (American Association of Collegiate Registrars and Admissions Officers) developed the Electronic Database for Global Education (EDGE). This database collects and analyzes data for degrees from around the world. It categorizes the educational certificates and degrees from various countries around the world. Because USCIS has adopted the EDGE database, this tool has become indispensable to evaluators.
CASE STUDY: AUSTRALIA
In the U.S., the standard prerequisite for entrance to a college or university are entrance exams and/or completion of high school requirements. In other countries, the requirements for entering university are different.
For example, Australian students receive Technical and Further Education certificates (TAFEs). These certificates are designated by their levels: TAFE I, TAFE II, TAFE III, and TAFE IV and are the equivalent of a U.S. high school diploma. However, because the certificates denote “further education” in its titling, it can lead to an erroneous conclusion by some that the certificates are the equivalent of a university-level degree. While some of the certificates may reflect completion of undergraduate coursework, that alone would not normally equate to the equivalent of an undergraduate U.S. degree.
In Australia, the length of a bachelor degree program can vary from three years to seven years of coursework. Some Australian bachelor’s degrees may even equate to a U.S. master’s degree, while other bachelor’s degree programs equate to a few years of college coursework in the U.S. It all depends on the length and robustness of the degree program.
GENERAL TIP FOR EMPLOYERS AND FOREIGN CANDIDATES
A common rule of thumb is that a bachelor’s degree with at least four years of continuous undergraduate study is usually considered equivalent to a U.S. bachelor’s degree. If the degree program doesn’t meet this test, then accruing relevant work experience can also be helpful towards establishing the equivalent of a U.S. bachelor’s degree based on combined work and academic experience.
ABOUT OUR GUEST AUTHOR
Shail Shurm grew up in Canada. His grandparents emigrated from both Germany and Hungary. Immigration has been a steady focus in Shail’s life. He has been working with Park Evaluations for the past 3.5 years and has a passion for assisting attorneys and foreign nationals navigate the complexities of credential evaluation for U.S. immigration matters. Shail can be reached at firstname.lastname@example.org.
Apr 19 2017
On April 17, 2017, USCIS announced it received just under 200,000 H-1B petitions. Speculation is circulating this year as to why the significant decrease in H-1B petitions. The most likely reasons are probably the most obvious: a shift in our economy and a shift in how companies are conducting business. Notwithstanding, the President still signed an Executive Order yesterday highlighting the need to reform the H-1B program.
Shift in Our Economy & Business Practices
It’s no surprise that since the November election, the protectionist rhetoric stemming from the White House has been strong and increasing in volume. No doubt this has had an effect on not just foreign job seekers, but also on U.S. companies considering how to balance their global workforce. Should they stay in the U.S. and continue to struggle to hire high-skilled workers amidst this anti-immigrant sentiment coming straight from the administration? Or should they develop subsidiaries in immigration-friendly countries (like Canada) and move a good portion of their workforce there, resulting in a loss of jobs in the U.S.?
On the other hand, market forces may also be at play, forcing a significant dip in the number of H-1B petitions this year. This may well be the harbinger of an economy that is downshifting gears.
Executive Order “Buy American Hire American”
Despite the changes in our economy, we hear the same resounding sentiment from this Administration: the H-1B Program Needs to Be Revamped. Of course, anyone who knows anything about the H-1B program would agree; but many can’t agree on how to revamp the program. Yesterday’s Executive Order “Buy American Hire American”, while grandiose in its release, lacked substance in its execution. The order merely instructs various federal agencies to conduct research and make recommendations on changes to the program, as soon as possible. In other words, a big snoozer, if you ask me!
The interesting irony is that the company that hosted the signing of the Executive Order, Snap-On Inc., is actually a great example of how successful the H-1B program can actually be. In fact, it is representative of many U.S. employers who employ a small fraction of high-skilled foreign workers as part of its U.S. workforce, in order to continue to innovate and grow.
Almost 1,500 economists recently banded together to sign a letter about the critical benefits that immigration brings to the U.S. This, coming from experts in how our market forces work and what will make our country prosperous! And yet… it seems the cry has gone unheeded.
Mar 28 2017
There’s a lot of chatter about changes to the H-1B program much of which are based on rumors and not facts; these include a rumor about a draft Executive Order that would alter this popular visa program, and various statutes introduced by Congress to revise the H-1B program. However, as of today, nothing has actually changed about the H-1B program. In fact, USCIS will be accepting H-1B petitions for the lottery this year starting April 3, 2017. That’s less than a week away. So why all the confusion and chatter?
There’s uncertainty because there’s a grave lack of understanding as to how our immigration rules work, and what powers a President may have to change existing H-1B laws.
Why the Law Matters
The H-1B visa’s existence is because of a statute. Congress passed multiple bills in the last century concerning immigration that eventually became laws of our land. The last iteration on H-1B visas was revised in 2004, and provided for how many H-1B visas were to be issued, what types of fees would be paid, and what wage requirements would need to be paid to foreign workers.
If the H-1B visa program exists because a statute was passed and signed into law, then the program shall too be altered or cease to exist by the same method. Hence, that’s why you have various politicians angling to introduce bills that may someday get passed, signed into law and become a new statute to supersede the latest one.
Congress creates. Therefore, Congress must alter or destroy. (Last time I checked, Congress had a really hard time agreeing on anything much….)
Then Why the Talk about Presidential Executive Orders?
Some might wonder why all the talk about Executive Orders if Congress controls what ultimately happens to the H-1B program.
In any given statute, there will be certain portions that aren’t explicitly written in detail. When this happens, the statute will typically and explicitly designate a federal authority to “fill-in-the-blanks” by empowering them to establish regulations that will help execute the intent of the law. It is under this vein, that the U.S. President can provide guidance, priorities, and direction to those designated federal authorities.
Under the current immigration statute, though, there’s not very much room for maneuvering by the President. The statute requires employers to pay H-1B workers at least the prevailing wage. Also, if the prevailing wage is made available to the public (which it is), then the prevailing wage must contain at least 4 levels of wages.
Theoretically, there could be room to impose a filing fee for the Labor Condition Application (a prerequisite filing with the Department of Labor prior to submitting an H-1B petition to Immigration). There could also be room for the Department of Labor to require an employer to conduct a labor market test (force employers to advertise to hire U.S. workers only), before it would agree to certify a Labor Condition Application. Theoretically, the President could impose this in an Executive Order. Though, both plans may fail if challenged in court, simply because it may exceed the authority of the Agency, since Congress did not contemplate these processes in the statute.
Therein lies the challenge with the how much power a President could wield through an Executive Order. The President’s primary role is to guide federal agencies in carrying out the law. Until Congress can act to reform the laws, we may not see very much change with the H-1B program yet.