The US legal and legislative systemframework is one checks and balances. The legislative branch – the Senate and House of Representatives –creates and passes law, which in most instances must also be signed by a President.
The executive branch, which now isheaded by President Trump, is tasked with administering US federal law. The President typically works throughagencies and departments in order to administer the law. For instance, the Department of HomelandSecurity administers laws concerning, among other things, US immigration. The executive branch’s authority is limitedby the underlying law that is passed by Congress.
(As an aside, the President’sauthority to administer law is also limited by the third branch ofgovernment—the judiciary. In the shortTrump presidency, we have seen severalinstances where the judiciary has not backed down from exercising theirauthority and limiting President Trump’s executive action.)
The scope of an underlyingCongressional law is what limits the President. Accordingly, there are some things that President Trump can consider todo, and other things that he probably cannot do.
Here is our list of H-1B-relatedchanges that President Trump can probably because these actions probably do notexceed the underlying Congressional statute.
- Revoke H-4 / EADauthorization. This rule was put in byPresident Obama’s administration.
- Revoke priorGuidance Memoranda that is favorable to the H-1B program. In fact, he has already started down thispath by revoking a 17 year old memorandum on the approvability of Computer Programmers.
- Increase H-1Bemployer or employee site visits. Sitevisits are clearly within Presidential authority. Again, the USCIS has recently released a press release notifying US employers of increased site visits.
- Increaseobtuse/harassing RFEs and NOIDs. ThePresident has indicated to DHS that it would like to see DHS use all its powerto interpret rules against H-1B users.
- Delay Consularapprovals under a cloak of “background checks”. The President generally has wide latitude to process or delay visaapprovals.
Our next post will address whetherthe Trump administration could change the H-1B lottery to a system whereby H-1Blottery slots were awarded based on another criterion, such as the salaryoffered to the H-1B worker.