Yesterday, President Trump signed the Presidential Executive Order on Buy American and Hire American, which includes a section addressing changes to the H-1B program which would give preference to H-1B petitions based on salary and skill level. Despite the fanfare with which this provision was announced, in reality, it merely calls on various agencies to “suggest reforms,” and does nothing to change the current system.
The text is limited to ordering the executive brach to make suggestions because when it comes to changing the way H-1B visas are allocated, that is all the executive branch has the power to do. Only Congress can change the way H-1B visas are allocated. To understand why this is so, you need to know a few basics about how US immigration law works. Any federal law, including the law creating the H-1B visa program, is broken into two tiers: the statute and the regulations.
- The statute is the text of the law as passed by Congress. The text of the statute is set in stone until it is changed by a new act of Congress, or declared unconstitutional by the Supreme Court.
- Because Congress does not always have the time or the expertise to articulate every small detail of how the statute will be implemented in practice, the executive branch writes regulations that explain in greater detail how they will execute the more general law of the statute.
An executive order can call for new regulations changing the details of how the statute will be implemented (i.e. which form must be filed, when it may be filed, how a vague term will be defined, etc.), but those regulations cannot add to or contradict the statute. For H-1B visa allocation, the statute passed by Congress requires that H-1B visas be issued “in the order in which petitions are filed.” The current first-come, first-served system is mandated by the statute. The executive branch can write regulations to explain the mechanics of how exactly they are going to implement this first-come, first-served allocation system, but they cannot write regulations that change allocation of H-1B visas to a merit-based system giving preference to certain petitions because of factors such as employee salary or skill level.
This is why the text of the order only calls for the executive branch to “suggest reforms.” Offering suggestions and then hoping Congress will act is all that the executive branch has the power to do.