• The Truth About Awards for O-1 Visas

    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.

  • Exploring the O-1 Visa as an Alternative to the H-1B

    As H-1B season approaches, employers and potential foreign employees may be finding it difficult to maintain a positive outlook. For those of you who attended today’s USCIS webinar on the H-1B online registration process, it’s obvious the USCIS is still working through many uncertainties surrounding the new H-1B registration process. When you factor in the rising incidences of denials by USCIS and issuing requests for evidence (RFE), it’s no wonder employers are exploring other non-immigrant visa options.

    While the preparation for the H-1B petition is relatively straightforward, USCIS statistics show that H-1B RFEs and denials have increased significantly over the past several years. The denial rate for new H-1B petitions has jumped from 6% in FY 2015 to a whopping 32% in FY 2019 (through the second quarter). Between FY 2010 and FY 2015, you’ll observe that H-1B denials rates never exceeded 8%. Today, the rate has quadrupled to 32%.

    Given the current landscape, it’s worthwhile for employers to explore alternative work options for their employees. The O-1 visa offers advantages for work authorization that are worth considering.

    The O-1A Visa
    The O-1 visa is an employment-based temporary work visa reserved for individuals who can demonstrate “extraordinary ability” in the sciences, business, athletics, or arts. Employers may submit the O-1 petition any time during the year to ask for an initial three years of work authorization. The best part is there is no annual O-1 quota or O-1 “lottery” to deal with.

    One of the challenges though, is proving an employee’s qualifications for an O-1 visa. Employees must be able to demonstrate they have “risen to the top of the field” through various categories such as having:

    • Received top honors or awards for their work;
    • Been a member in prestigious organizations;
    • Served as a peer judge or reviewer;
    • Authored articles in their area of expertise;
    • Publications about themselves or their work;
    • Been employed in a critical role for distinguished organizations; and,
    • Received high remuneration.

    While the list may appear intimidating, many employees in specialized fields, especially those who have a masters degree or higher, have already published their work in the industry, have co-authored patents, and have made significant original contributions in their field which can qualify them for the O-1 visa.

    One advantage of the O-1 visa that is often overlooked by employers, is how much of a competitive edge the O-1 visa offers. While there is indeed more effort that goes into preparing a strong and approvable O-1 petition, the benefits are much higher to the company in the long term. Employers who pursue an O-1 visa for their employees benefit from recruiting “aliens of extraordinary ability.” They signal to candidates that the company is open-minded, can think outside-the-box, and willing to explore opportunities that will help the company grow. It may also signal the possibility the company would apply that same logic for greencard options as well. Companies who can distinguish themselves from competitors by exploring immigration options for candidates will probably fare better when it comes to recruiting that highly sought-after candidate.

    Therefore, it is well worth the effort to explore all options with an experienced immigration attorney, particularly a team with years of experience assessing and drafting O-1 visa petitions. Contact Accel Visa Attorneys to learn which visa best suits your needs.

  • E-2 Investor Visa Application Filing Tips from an Experienced Immigration Attorney

    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

  • 5 Things Every Foreign Worker Must Consider Before Changing Jobs

    Editor’s Note: Today’s guest blog is written by Mark Gabel, an employment lawyer who helps executives, professionals, and individuals understand and protect their rights at work. He advises on employment contracts, human resources issues, helps with severance negotiations, and represents individuals in wrongful termination claims and other disputes with their employers.

    Foreign workers in the U.S. face special challenges due to their unfamiliarity with the U.S. work environment, especially when changing jobs. Compensation and long-term career prospects are important, but there are other factors foreign workers should also consider when evaluating a new job opportunity in the U.S, in order to maximize job satisfaction. Five of the most important of those factors are below.

    1. Your own motivations for moving to a new role.

    All of the reasons to change jobs boil down to three factors:

    (i) Increasing your job satisfaction and your happiness at work (e.g., a boss and co-workers you enjoy working with, prestige, hours, flexibility and work-life balance).
    (ii) Improving your compensation package (e.g., salary, bonuses, equity compensation, commissions, and/or benefits).
    (iii) Improving the long-term trajectory of your career (e.g., better opportunities for promotion, acquiring skills and experience that will help you to get a job you hope to have down the road).

    When considering an offer for a new job, think about which of these factors—at that time—are most important to you, and why. Then look at the new job and decide whether and how it checks these boxes. You shouldn’t take on a new role unless it fits with both your short term and long-term goals.

    For example, a better title, more responsibility, or more money may not always be the best decision. If you hate the job or your co-workers, or the hours or commute make you miserable, the extra money, responsibilities, or prestige may not make you happy. On the other hand, even if you want to be home for dinner with your family every night, you may decide to give that up and take on a longer commute for a while so you can save for a down payment on a house, assist family back in your home country, save for a college education, or your own retirement.

    2. Differences in corporate cultures and policies.

    Do you have a good sense for what it’s going to feel like to go to work every day? Are people happy working there? Will you be? Some companies are known for working hard to address employees’ needs, or bending over backwards to fully support their foreign workers when it comes to immigration. Other companies have a reputation for cutthroat office politics, or waiting until the last possible year to start the greencard process for foreign workers. Do these things matter to you?

    Because foreign workers are less familiar with the U.S. job markets, they may overlook these factors. But they can affect whether you’ll love it or hate it at a new company, so asking these questions early on can help in making an informed decision about whether to accept a job offer. It’s a good idea to research the culture of your prospective new employer before accepting an offer, if you haven’t already.

    3. How will your changing jobs impact your and your family’s immigration?

    Make sure you’ll be able to keep your U.S. work authorization after changing jobs. Don’t assume that you can immediately transfer your visa status to your new job, because certain types of visas will take much longer to process than others, and you’ll need to do that BEFORE you may start working for the company.

    Also, if your spouse’s visa status is tied to your own, consider whether to make changes to their visa status, too. Talk to an immigration lawyer—yours or your employer’s—to make sure that you know what you need to do, and when, to meet your goals.

    4. Will your non-salary compensation change?

    If you’ve been offered equity along with your new job, think carefully about the implications. At most tech startups, your equity won’t start to vest until you’ve worked at the company for a year. And if company is not publicly-traded, your equity may not be worth much. Even if it is very valuable, there may be no one to whom you can sell your shares. Compare this prospect to what you currently have at your employer. If you’re vested, and a sale, IPO, or stock buyback occurs in the future, crunch those numbers now to see how much you would gain, and then consider whether you would actually realize that money.

    You might also want to consider this: if you have vested equity at your current employer when you leave, or if you’re granted options, stock, or other equity at the new company right away, you may get hit with a sizable tax bill you’ll be responsible for paying. If you don’t have a savings cushion to absorb this tax bill when it comes, you may be in a pinch. (Check with an accountant who is experienced with equity compensation to find out more about the tax implications of changing jobs.)

    Many employees don’t think much about the non-monetary parts of their compensation packages, but employee benefits for professional workers can have a cash value equal to 30% of salary. These include health insurance and contributions to retirement accounts. Make sure you understand what insurance options your new employer offers, and how much you’ll have to pay for coverage at the new job. Many foreign workers decide to contribute to U.S. retirement plans, especially if they plan to become citizens eventually.

    5. Where you hope, plan, or expect to be working down the line.

    If later on you’re planning on returning to your home country, or moving on to another foreign job on another continent, think about how the new job will prepare you for those goals. What industries are strongest in the places you may want to work later? What jobs are most in demand? What kind of experience may employers in those places want to see—for example, would you do better later on if you were a manager now, or an independent contributor? You may or may not know the answers to these questions, but if you plan to leave the U.S. at some point, they should at least be part of your thinking.

    Finally, remember that jobs don’t last forever. Companies change their business models, get acquired, reorganize, and go out of business every day. If that happens at your new job, your responsibilities and reporting structure could change, or you could be laid off. Would the new company accommodate your immigration needs? Those risks are often greater at newer startups, or companies that have just been acquired. The rewards of working at newer companies may be worthwhile but it’s always a good idea to do your research in advance prior to accepting that new role.

    ***

    This post does not constitute legal advice, and should NOT be rely upon when making decisions that may impact your legal rights. No two situations are alike. Mark Gabel can be reached at Gabel Law Firm, P.C. at info@gabel-law-firm.com and online https://gabel-law-firm.com/contact/.

  • International Entrepreneur Rule (Parole) Suffers the Trump Effect

    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!

  • Trump Enjoys Partial Victory in Travel Ban

    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!

  • Progress Stalls on Parole for Entrepreneurs – Senators Push Back

    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.

  • Visa Pit Stop Celebrates Immigrant Heritage Month 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!

  • Executive Order on H-1B Signed Despite Decreased H-1B Petitions Filings

    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.

     

  • Can President Trump Unilaterally Change the H-1B Program?

    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.