As President Trump works out revisions to his controversial seven-country travel ban, his administration is also working on a separate immigration-related executive order that could send bigger shockwaves through the business community, according to Bo Cooper, a partner at immigration law firm Fragomen.
The earlier order, with its 90-day ban on travel into the United States for citizens from seven predominately Muslim countries, led to chaos at airports and prompted over 100 companies, including some of the country’s largest high-tech firms, to join a lawsuit opposing the measure.
About 60,000 people had visas provisionally revoked in the short period that the ban was in place, but a successful court challenge brought by the states of Washington and Minnesota blocked further implementation of the order.
The administration is currently preparing a revised version of the ban that it hopes to implement soon. In the meantime, it is working on another executive order that is "much more likely to have broader and longer term consequences for the ability of employers that rely on U.S. immigration programs to move their talent into this country from overseas," Cooper said in a recent webinar.
While the order is still only in the draft stage, in its current form it would require federal agencies to review all regulations that allow foreign nationals to be employed in the U.S. and determine which ones violate immigration law or are otherwise not in the national interest.
"This is a startling way to frame this instruction because it seems to build in a conclusion that at least some of those regulatory programs do violate immigration statutes or otherwise don’t serve the interests of the nation or of U.S. workers," Cooper said. "So, it is a not-so-subtle indication that we should expect proposals after that review that result in a narrowing of many of those programs."
For example, the draft order calls for the rollback of significant portions of the Optional Practical Training (OPT) program, which allows students with F-1 status to work for up to 36 months on a student visa in order to gain practical training to complement their education.
The order would also propose changes in how H1-B visas are allocated and suggests an alternative to today’s lottery process to ensure that the visa is reserved for what it calls "the best and brightest."
The order would also increase the number and scope of unannounced site visits that are carried out by the U.S. Citizenship and Immigration Services’ fraud detection and national security unit. "We should expect to see a lot more use of the government’s audit and enforcement authority as a result of the executive order," Cooper said.
Employers should stay alert about the potential changes and press the government for clarity as the process moves forward, advises Cooper, who once served as General Counsel for the U.S. Immigration and Naturalization Service. "I was in the government before and I have been in situations where we hadn’t anticipated certain implementation issues, so citizens who raise concerns in a cooperative way as they arise do a real service to the government," he said.
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