To change the system, the Trump administration can direct its agencies to develop new H-1B lottery regulations.
Creating a new regulation can be a lengthy process, but Bruce Morrison, a lawyer and former Democratic congressman from Connecticut who represents the IEEE-USA, believes that the administration can issue an interim rule. This would be an expedited process that can be accomplished in 30 days, with a comment period after.
The Trump administration may not be able to do everything its wants to with the H-1B visa program through administrative action. But Morrison believes that existing law does give the administration some latitude.
For instance, the law already sets a classification system for types of visa users. There are dependent firms (which have more than 15% of their workforce on a visa) and non-dependent firms, which have less than that percentage.
Morrison said that preferring non-dependent firms to dependent firms in a visa distribution "is something the [rule-writing] agency clearly could do."
Giving non-dependent firms priority would put the offshore outsourcing firms -- which are all H-1B-dependent firms -- at a disadvantage in the visa distribution.
There are differences of opinion about the extent of latitude that Trump has with changing the lottery. It is believed that anything the Trump administration does with the lottery will be subject to an immediate court challenge.
William Stock, an immigration attorney and president of the American Immigration Lawyers Association, believes that any change of the lottery will require statutory authorization, meaning legislation by Congress. If the Trump administration attempts to change the allocation method to something other than a lottery, he believes it will be thrown out of court.
But to be clear, it's not just the small firms that stand to gain from a system that favors non-dependent visa users. Most of the large IT suppliers, such as Microsoft and Google, hire large numbers of visa workers but are still considered non-dependent.
This opens up potentially another problem, say some critics who believe the biggest threat facing IT workers from the H-1B visa program is age discrimination. If large IT firms have more access to H-1B visas they may prefer hiring the younger, and somewhat indentured, visa workers.
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