Overhaul of H-1B Visa Program Expected in Response to "Buy American and Hire American" Order

The White House has been working with the Department of Justice to formulate changes to the H-1B visa program pursuant to the administration’s “Buy American and Hire American” executive order. The H-1B visa program is a temporary work visa for professional positions. Apart from the required involvement of the Department of Homeland Security, some of the proposed changes to the program could be implemented by administrative actions, while others would require new legislation to be passed.

Proposed Changes That Would Require Administrative Action Only:

  • USCIS could shorten the H-1B approval period from the current 3 years to 18 months or any other period of time, meaning employers would have to apply for extensions on a more frequent basis.
  • The Optional Practical Training (OPT) Program could be eliminated or reduced.  Under the current OPT program, graduates of a U.S. undergraduate or graduate program are granted 12 months of employment authorization.  Certain STEM graduates can apply for an additional 24 months' extension to their OPT period.  Eliminating or reducing OPT periods could mean that employers would have to apply for H-1B visas sooner. This change could also affect employers' ability to hire recent graduates.
  • Require H-1B employers to submit reports every six months documenting the duties performed by each of their H-1B employees.  Currently, H-1B employers do not have any reporting responsibilities. 

Proposed Changes That Would Likely Require Legislative Action:

  • Require companies sponsoring H-1B visas to advertise the positions online first and give preference to qualified U.S. workers.
  • Reduce the annual 65,000 H-1B cap and decrease the six-year maximum allowable time period for an individual to remain in the U.S. and work on a single H-1B visa.

An overhaul of the H-1B visa program involving all or some of the potential changes listed above could affect not just future H-1B employers, but also employers that currently employ individuals under the H-1B program. 

We will continue to monitor this development and report on any proposed changes to the H-1B visa program.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.