President Trump took a step Monday toward turning populist campaign rhetoric into political reality, beginning the H-1B visa lottery while making changes to prevent the temporary foreign worker program from being used to undercut American workers.
But according to immigration hawks, Trump didn't go nearly as far as he promised.
Trump's administration made a series of policy announcements on Monday aimed at making sure U.S. workers aren't passed over by skilled foreign workers, who can use the H-1B program to temporarily enter the U.S. and work. Matt O'Brien, research director for the Federation for American Immigration Reform, said the Trump administration was essentially saying, "Listen, there are limits on this program and we're not going to use it as a discriminatory tool."
But it is a far cry from Trump's sweeping March 2016 pledge to "end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program."
"He didn't have to do much on H-1B, but he hasn't even done a little," said Mark Krikorian, executive director of the Center for Immigration Studies. "The DoJ press release warning H-1B employers not to discriminate against Americans is fine (it's really the only thing Sessions could do from his end, since he doesn't oversee management of the program), but it's basically a booby prize."
But the changes are more than symbolic, even if they didn't go far enough for those who maintain H-1B visas are frequently used to replace U.S. science and technology workers with cheaper foreign labor. The changes in how the rules are enforced could still hamstring the outsourcing firms that usually wind up with many of the visas.
Trump was elected on a "Buy American, hire American" platform. His administration suspended premium H-1B processing in March, but otherwise made no moves to curtail the program.
On Monday, the Justice Department warned employers against "misusing the H-1B visa process to discriminate against U.S. workers." Attorney General Jeff Sessions has been a critic of the program and helped shape the president's immigration policy during the 2016 campaign.
The Department of Homeland Security also pledged to step up worksite visits to "determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers."
This comes on the heels of U.S. Citizenship and Immigration Services rescinding a 17-year-old memo offering guidance to potential H-1B employers, and adopting tougher standards for the type of workers who may qualify to keep the program from being used to fill entry-level positions.
UCIS will also target H-1B fraud, scrutinizing companies with "a high ratio of H1-B workers as compared to U.S. workers, as defined by statute."
"The Trump administration will be enforcing laws protecting American workers from discriminating hiring factors," said White House press secretary Sean Spicer during Monday's press briefing.
Still, those moves are far from a decision to "end forever" the program. The difficulty in pleasing both Silicon Valley and Trump's "hire American" supporters is illustrative of the broader challenges the president will face in changing the country's immigration and trade policies.
"It's the tension between a former businessman who is now the president in a down economy wanting to do anything he can to drive the economy and trying to balance business concerns with labor and national security concerns," O'Brien said.
H-1B visas are overseen by the Department of Labor. Trump's first pick for secretary of labor, fast food restaurant CEO Andrew Puzder, was a booster of foreign guest workers. Puzder's nomination was withdrawn in February. Replacement nominee Alexander Acosta has yet to be confirmed by the Senate.
The Trump administration, therefore, moved to upgrade the government's take on H-1B visas before securing its latest Labor pick. And it made several precise changes that the new secretary and other agencies will have to deal with.
The new USCIS guidance says that the previous set of guidelines "does not properly explain or distinguish an entry-level position from one that is, for example, more senior, complex, specialized, or unique," echoing a complaint that H-1B visa holders often don't possess skills that are genuinely in short supply.
USCIS also ended the presumption in favor of computer programmers being eligible to participate in H-1B. Applicants will now have to demonstrate unique skill sets.
"[T]he fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation," the document read.
Walt Disney Company laid off U.S. employees and forced them to train H-1B workers as a condition of receiving their severance. This helped make H-1Bs a 2016 campaign issue. Sen. Marco Rubio, R-Fla., particularly faced questions because he represented the Disney workers in Congress and had previously favored increasing the number of visas available under the program.
In the Republican primary debates, Trump occasionally flinched from criticizing Rubio on H-1Bs. He denied calling Rubio "Mark Zuckerberg's personal senator" — the statement appeared on Trump's website — and at one point appeared to reverse his stand against the program.
"I'm in favor of people coming into this country legally. And you know what? They can have it any way you want," Trump said. "You can call it visas, you can call it work permits, you can call it anything you want."
The Trump administration has nevertheless taken the first steps toward strengthening enforcement. Nearly 300,000 are expected to apply for general visas capped at 65,000 plus another 20,000 for people with advanced U.S. degrees.
For the last four years, the cap has been hit in less than a week.