On April 18th, 2017, President Trump signed an Executive Order (“EO”) titled, “Buy American And Hire American.” President Trump states that the intent of this EO is to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” While this is, and should always be, the foundation for our U.S. immigration system, this executive order will have little immediate impact on both the statutory and regulatory framework that governs current U.S. immigration laws.
For example, this EO instructs the heads of relevant agencies to, “as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system.” But to change existing immigration laws, Congress must first introduce and pass legislation. In a Republican-controlled Congress, this should be an manageable task and there have already been several bills introduced this year. But an EO alone cannot change existing statutes. Moreover, to change federal regulations, as suggested in this EO, federal agencies must draft new rules that must then go through he Administrative Procedure Act (“APA”) which includes public notice and comment over a period of time. These legal frameworks are required to make substantive changes to our existing immigration laws. Thus, the President’s final instruction that, in order to “promote the proper functioning of the H-1B visa program,” heads of agencies should “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries” must first be vetted through Congress before systematic changes can occur.
There is no doubt that we can expect changes to the H-1B program as we know it. And we must start preparing for this change. But an EO, alone, and a White House press statement that mis-states statistics, simply cannot make these changes. Our legal system is built on a structure of laws, and regulations, and a formal process that we must follow.
Equally as important, and lost in the current narrative, is the fact that our current H-1B program has built-in U.S. worker protections that require employers pay an H-1B worker at least what U.S. workers in the same role make, and is based on U.S. Department of Labor wage data. The current system requires employers pay substantial amounts of money, for each H-1B worker, that goes specifically and solely to re-train U.S. workers. Finally, the simple fact is that employers would not invest the time and costs required for each H-1B worker if it could easily find a U.S. worker for the role. So while this EO urges change, we need to see where Congress and our federal agencies – after public notice and comment – decide change must occur.
Please contact SPS Immigration if you have questions about this EO or its impact on your workforce.