On Monday, President Trump appeared to be following through with one of his many campaign promises to advance American labor and goods by signing a new executive order also referred to as “Buy American, Hire American”. The order directs the federal government to prioritize American goods and labor and broadly targets immigrant labor while calling out the H-1B visa program in particular. The administration aims to further discourage the use of foreign labor, which they believe reduces American wages and displaces workers (note: 1,500 economists recently penned a letter to the administration explaining the importance of immigrants to the U.S. economy).
Another goal outlined within the order is to prevent fraud and abuse within the system. While the laudable goal of preventing fraud and abuse by some bad actors has merit, it is important that any policy decisions that result from this order are based on proper analysis and fact rather than jingoistic rhetoric. Recent efforts to root out fraud have unnecessarily increased scrutiny of some adjudications, which force us to provide more information than is required by law to document the existence of an employer or the underlying position offered. Put differently, there is already a robust mechanism in place to disrupt most fraud, but such mechanisms should not treat all employers as likely abusers.
Under the order, the Department of Homeland Security and related agencies are now tasked with coming up with a plan to support “hiring American” either by way of guidance, rule-making, or policy proposals. No additional guidance was given as to how future measures will further prevent fraud and abuse; however, with an already over-burdened and antiquated immigration system, it’s important to ensure any action doesn’t overreach and further stress the system. In the order, Trump specifically mentions H-1B visas and suggests further reform is necessary to ensure only “the most skilled” workers are awarded this type of visa. A change of this magnitude would require congressional approval. As the bulk of H-1Bs are found in engineering, the industries that would possibly be most affected by change in this area would be technology companies and any company that hires technology workers.
Although this new executive order aligns with Trump’s campaign rhetoric, as others have reported, it is at odds with Trump’s longstanding business practices. Trump himself has manufactured goods in as many as 12 other countries including China, Germany, India, Turkey, and Vietnam and his businesses have also routinely hired H-2B foreign workers. An estimated 1,371 foreign guest worker visas have been granted to Trump businesses, including 78 visas this year for his two Florida clubs – the Mar-a-Lago Club and Trump National Golf Club.
Although Trump and his administration may have future intentions of policy changes and new legislation, at this point, this order is nothing more than guidance. For now, this directive has not introduced any new laws or regulations. In order for this to happen, either DHS must introduce draft regulation interpreting the current INA or Congress must amend the INA. Given that the rhetoric continues to remain anti-immigrant, we will continue to inform clients and others on the issues involved and encourage all stakeholders to voice their opinion on this issue as proposals and legislation are introduced. It is only through education and lobbying that future regulations and laws will reflect the diverse needs of our country.
We will continue to follow this order and the issues surrounding it. You may separately access the order through the White House website here.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **