On April 18, 2017, President Trump signed an Executive Order (EO), entitled “Buy American and Hire American.” In addition to ordering a review of the U.S. government’s purchasing or acquiring of goods, products, or materials, the order also directs the State Department, the Department of Labor, and the Department of Homeland Security to propose new rules and guidance to “protect the interests of United States workers.”
The order directs these agencies to suggest changes that will ensure that H-1B visas are granted to the “most-skilled” or “highest-paid” foreign national workers. However, the order does not indicate specific changes or a timeline in which these changes might occur.
This order does not make any immediate changes to the H-1B program. However, it may indicate that the U.S. government will increase its scrutiny on all stages of the H-1B program, including petition approval, visa applications, and Labor Condition Applications. Employers and employees should be aware of an increased scrutiny on H-1B compliance, including unannounced worksite visits by immigration officials as well as audits of LCA and H-1B files.
This order may also signal the Trump Administration’s willingness to move forward with H-1B reform. In particular, the order’s language tracks a bill introduced in the Senate by Senator Chuck Grassley [R-IA]. This bill is still under consideration before Congress, and includes visa preferences for high-wage and advanced degree (Master’s degree or higher) workers as well as increased enforcement and auditing of H-1B employers. In addition, the bill reduces the H-1B maximum validity from six years to three years, adds an internet recruitment requirement in relation to postings, and a filing fee for LCA submission. A competing bill introduced in the House by Representative Zoe Lofgren [D-CA] also institutes a wage and degree-based preference system but does not have these additional provisions. Any changes to the H-1B laws or regulations must go through required vetting and review before being enacted, processes that will likely take months.
It is important to note that for the most part, the President does not have the authority to make changes to the H-1B category in terms of the classification or of the number of new visas issued. This would require that Congress take action to put forward new legislation that is signed into law. While this is a signal that the Administration is interested in changes, the Executive Order does not have any real impact on the H-1B category.
Should you have questions on this Executive Order or on the H-1B visa program, please contact your team at Jackson & Hertogs.
