It is important to point out that the President does not have the power to change many aspects of the H-1B program by Executive Order. Most of the program is under the authority of congress and would require legislative action to change. The executive order itself is unlikely to impact the vast majority of the H-1B regulations. This work visa program is used by companies across the United States and across all industries. There are thousands of employers that use the H-1B visa program and most employers do not carry out any kind of fraud or abuse of the system, which is the intended target of the executive order.
Those areas where the President does have authority must go through the regulatory process before changes can be implemented and those regulations must be consistent with the laws passed by Congress. The Executive Order is expected to simply direct the agencies involved to review existing regulations to see what changes may be necessary. He will still have to go through congress or the regulatory process for most changes to occur.
That means, the existing lottery program remains the same and the petitions selected this year will go through the same adjudication process as in previous years.
Here’s what the Executive Order says:
Sec. 2. Policy
In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act – This is the section of the law that governs the Labor Certification process for employment-based green cards, it is not related to H-1B petitions.
Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.”
(a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse. – This requires most ideas for reform to be proposed through notice and comment rulemaking.
(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. – This would likely then require legislative action by congress to change the laws that created the H-1B program.
This will not be done overnight but changes to H-1B program will be introduced.