Pending H-1B Order Could Impose New Regulatory Burdens, Industry Says

The same day that President Donald Trump signed an executive order to decrease regulatory burdens, his press secretary forecast new rules on high-skilled foreign workers that critics say would increase regulatory burdens on tech companies.

During Monday’s press briefing, White House Press Secretary Sean Spicer said an executive order altering the H-1B visa system for highly-skilled immigrants is imminent. “It’s a part of a larger immigration reform effort that the president will continue to talk about through executive order and through working with Congress,” he said.

Some proponents of the program are worried. “You can’t issue an executive order making it high policy that you want to reduce the regulatory burden on companies and then act like when it comes to immigration, vastly ramping up the regulatory burden is not a giant contradiction,” said Stuart Anderson, the executive director at the National Foundation for American Policy, in an interview Monday.

The U.S. tech industry relies on H-1B visas to fill about 85,000 high-skilled positions each year. And some tech officials are relieved that the Trump administration isn’t scrapping the program altogether.

“It certainly could have been worse,” said Rob Atkinson, president of the Information Technology and Innovation Foundation.

Atkinson told Morning Consult on Monday that technology companies won’t be negatively affected by the new H-1B order, with one big caveat: If the administration forces companies to go to extreme lengths to hire Americans before looking to foreign nationals, that could cause problems.

On Monday, Bloomberg reported that a draft of the executive order would scrap the current lottery system through which H-1B visas are awarded. The new system would instead grant visas for only the highest-paying positions.

Atkinson spoke promisingly about that new system, saying it would allow the best visa applicants to enter the country.

Trump has not yet finalized the executive order, and both Atkinson and Anderson said they were reacting to reports and private discussions of draft documents. They both say it won’t be easier on tech companies.

“The language I saw on the executive order wouldn’t lead anyone to believe it’s going to make it any easier on employers to navigate the immigration system,” said Anderson, adding that overly-stringent requirements could force tech to invest outside the United States.

Atkinson said the White House could set conditions forcing tech companies to advertise highly-skilled positions on the U.S. market for extended periods of time. “These are fast-moving industries. Companies get opportunities, they want to jump on them,” Atkinson said. “Having to delay them more, that would be bad for innovation.”

Critics of the H-1B program — including Sen. Jeff Sessions (R-Ala.), Trump’s pick for attorney general — say it is used by companies to give lower-level technology jobs to foreign workers who are willing to work for less than Americans.

Anderson’s group released a report earlier this month suggesting that limiting H-1Bs to the highest-paying jobs, as Trump officials have suggested, would make it difficult for small and medium-sized tech companies to attract needed foreign talent.

Atkinson disagreed with NFAP’s assessment. “There are a lot of startups that are getting fairly large capitalizations, equity infusions,” he said. “If that person is really the person they need, paying an extra $20,000 to $30,000 should not break the bank.”

Amir Nasr contributed.