Is the H1-B visa program an executive initiative or a statutory mandate?

The H1-B visa program allows US corporations to import skilled foreign workers into the United States.

President-elect Donald Trump has threatened to end the program. As President, would he have the power to do so and unilaterally end the H1-B program or is the program mandated by law? If the program is mandated by law, what discretion does the President have over how many such visas are issued? Can the President order that existing H1-B visas be revoked?

  • 1
    Your link title mischaracterizes the ComputerWorld article you quote. Nowhere did he threaten to end the H1B program. He threatened to review and eliminate abuses in it, e.g. where a visa is used to replace an existing US-citizen employee who gets laid off/ reduced to zero-hours/ or the H1B worker is paid below prevailing wage/ employed as a temp. If (say) 5% of H1B petitions were found to be abusive and 95% weren't (i.e. were legitimate), this wouldn't affect the other legitimate 95%. So, he never suggested ending the program. – smci Jan 27 '17 at 8:38

H1-B Visas are Established by Law

The H1-B visa is allowed for by the Immigration and Nationality Act. The relevant text is (Sec 101 (H)(i)(b)):

[someone] coming temporarily to the United States to perform services ... in a specialty occupation described in section 214(i)(1) or as a fashion model ...

This portion of the text is the definitions. It establishes people in this category as being aliens who are eligible for non-immigrant visas.

Statute Does Not Require Them

However, the same statute defines only the maximum number of entrants to the country (Sec 203(b)(i):

Visas [for priority workers] shall first be made available in a number not to exceed 28.6 percent of [the total limit]

There is no requirement to issue any visas at all - only a maximum proportion that may be issued. It is conceivable that the President could direct his Department not to issue these visas for a given year. At the very least, this would eventually to all H1-B visas not being renewed and through attrition those people would leave.

Revoking Existing Visas

The executive branch's regulations allow the Department of State to revoke any visa for any reason:

A consular officer, the Secretary, or a Department official to whom the Secretary has delegated this authority is authorized to revoke a nonimmigrant visa at any time, in his or her discretion.

The President could direct the Secretary (and their consular officers) to revoke H1-B visas (which are non-immigrant visas) completely at their own discretion.

  • Can the president revoke visas that have already been issued. – Tyler Durden Dec 15 '16 at 17:42
  • Edited to include this. – indigochild Dec 15 '16 at 18:25
  • Caveat: Immigration law is dense and complicated. I am not an immigration attorney, and I welcome any input to improve this. You might also get a good answer on law.se – indigochild Dec 15 '16 at 18:26
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    "It establishes people in this category as being aliens, and therefore allows them to receive visas": actually, aliens are defined elsewhere more simply as being people who are not US citizens or nationals. The categories just establish which aliens are eligible for admission as nonimmigrants and therefore allows them to receive nonimmigrant visas. – phoog Dec 16 '16 at 5:23
  • @phoog - That is exactly right. I will correct that. – indigochild Dec 16 '16 at 15:12

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