On the heels of the controversial executive order barring entry of nationals from seven predominantly Muslim countries, President Trump is now about to set his sights on business immigration issues. We have learned the following from a leaked draft of the executive order that President Trump is expected to sign this week:
- We expect that the EO will limit the ability of businesses to use the B-1 (business visitor) category to bring professionals who they employ abroad to the United States to provide services, regardless of the length of the intended period of time. This would be contrary to the long-utilized B-1 in lieu of H-1B provision, which allows certain qualified professionals employed abroad to enter the U.S. for short-term stays to perform services as long as they are not being paid by a U.S. source.
- The proposed EO will likely limit the ability of companies to file H-1B petitions for foreign national professionals unless they have first recruited for the position and unless they offer a level of wages that exceeds the prevailing or actual wages being paid to U.S. workers. And the quota for H-1B visas, already limited to a paltry 65,000 (plus 20,000 US advanced degree holders) per year, will be filled based on higher-level wage positions getting priority in the selection of H-1B cases.
- We also expect that the EO will tighten the requirements of the E-2 (treaty investor) visa category by foreign companies that have invested heavily in their U.S. subsidiaries to qualify managerial and essential skills employees.
- The proposed EO will likely end the two-year STEM extension of optional practical training enjoyed by recent graduates with degrees in the STEM fields.
- The number of site visits to L-1 and H-1B petitioners will increase, and will be expanded to cover all temporary visas.
- The ability of companies to employ foreign national workers with employment authorization documents or similar grants of work-authorization will be seriously restricted.
Once the EO is issued, we will advise further if there are significant changes from the draft EO. As these likely changes would severely restrict business immigration, this memorandum lets you learn of them at the earliest opportunity.