On April 18, 2017, President Trump signed an Executive Order (EO), “Buy American and Hire American.”
The “Hire American” portions of the EO are remarkably brief. The EO states the Executive Branch’s policy to rigorously enforce and administer the laws governing entry into the United States of workers from abroad in order to create higher wages and employment rates for U.S. workers and to protect their economic interests.
“U.S. workers” are defined by the Immigration and Nationality Act (INA) as U.S. citizens or nationals, U.S. permanent residents, foreign nationals who are admitted to the U.S. as refugees or granted asylum after admission, or who are otherwise authorized by the INA or the Attorney General to be employed.
Advancing the New Policy
In order to advance this policy, the attorney general and the secretaries of the Departments of State, Labor, and Homeland Security are directed, as soon as practicable, to propose new rules and issue new guidance to supersede or revise previous rules and guidance if appropriate, and to protect the interests of U.S. workers in the administration of the immigration system, including through the prevention of fraud and abuse.
These same administration officials are also directed to suggest reforms to help ensure that H-1B visas are awarded to the “most-skilled or highest-paid” foreign nationals. In an April 17 background briefing on the EO, a senior administration official stated the administration’s intention to eliminate the random lottery system used currently to compete for new H-1B slots each year because it believes that this system is weighted toward the lowest wage workers. Instead, it will substitute a system that prioritizes higher-skilled, higher-paid workers to accomplish its goal of making it much more difficult to use the H-1B program to replace U.S. workers.
Proposals to Prevent Fraud and Abuse
In addition, both U.S. Citizenship and Immigration Services (CIS) and the U.S. Department of Labor (DOL) announced plans this month to combat H-1B fraud and abuse.
CIS will use three additional vehicles to detect and prevent fraud and abuse. It will:
- make it easier for the public to report suspected H-1B fraud and abuse;
- adopt a provision allowing individuals whose status has lapsed to file for H-1B status or to change their nonimmigrant status if they show they may face retaliatory action from their employer for reporting a Labor Condition Application violation; and
- expand site visits to target specific employers and worksites, including companies with a high ratio of H-1B employees, IT outsourcing companies that place their H-1B workers at third-party client sites, and newer companies lacking confirmation of their businesses through commercially available data.
The DOL plans to protect American workers against discrimination by:
- rigorously using its existing authority to initiate investigation of H-1B program violators;
- considering changes to the Labor Condition Application to provide greater transparency for agency personnel, U.S. workers, and the general public; and
- continuing to engage stakeholders on how the H-1B program might be improved to provide great protection for U.S. workers.