Today, April 18, 2017, President Trump signed an Executive Order (EO) titled “Buy American and Hire American” with the intent of making changes to the U.S. visa program to protect the jobs of American workers (which includes U.S. citizens and lawful permanent residents).
WHAT YOU NEED TO KNOW
In addition to provisions calling for the enforcement of laws which require, or provide a preference for, the purchase of goods produced in the United States, the EO directs various federal agencies to propose new rules and issue new guidance relating to the administration of the U.S. immigration system in order to protect the interests of U.S. workers. The EO indicated that these “Hire American” provisions are intended to create higher wages and employment rates for U.S. workers and to protect their economic interests. Of particular note, the EO focuses specifically on reforms to the H-1B visa program, though it remains to be seen whether such reforms, once implemented, would impact other visa categories as well.
We summarize the various immigration-related provisions of the EO below:
Protecting the Interests of U.S. Workers
The EO directs the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to propose new rules and issue new guidance to protect the interests of U.S. workers in the administration of our immigration system, including through the prevention of fraud or abuse. Where deemed appropriate, these rules would supersede or revise previous rules and guidance and the various agencies are directed to suggest such reforms “as soon as practicable,“ though no other specific information as to the proposed content of these reforms is included.
H-1B Visa Reforms
The EO directs the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid foreign nationals. This provision is deemed as being necessary to the proper functioning of the H-1B visa program and the various agencies are directed to suggest such reforms “as soon as practicable,“ though no other specific information as to the proposed content of these reforms is included.
THINGS TO KEEP IN MIND
This EO does not immediately implement any changes to the current U.S. immigration system. However, the EO is broadly written and intended to review current immigration programs and potentially address concerns with all of the nonimmigrant visas and employment-based immigrant visas.
With respect to the H-1B visa program specifically mentioned, the EO does not provide specific guidance on what reforms will be made to the H-1B visa program but D&S notes that legislative action is required to make most substantive changes to the current H-1B visa program. With respect to the agency review that the EO calls for, any regulatory changes that would be made consistent with the EO’s directives would be required to go through the regulatory process of notice and comment and must also be consistent with existing H-1B legislation. Therefore, the scope and effect of the EO will be limited absent legislative action to implement more sweeping reforms.
The EO dictates specific timelines in which the agencies must complete their review and provide their proposed changes. As such, D&S will monitor regulatory changes made as a result of this EO closely and provide updates as more specific information becomes available.