#ImmigrationWatch2017 | Topic #6: Perm & H-1B Visa Reforms | What the new Executive Order, "Buy American and Hire American," means for the employment-based visa system.
Last week, President Trump signed a new Executive Order (EO) entitled, "Buy American and Hire American." Did President Trump finally make concrete changes to the work visa program, particularly the controversial H-1B program or is this EO another vague mandate to the federal agencies? Attorney Shaffer breaks it down below.
What does the new EO tell us?
President Trump's new EO is another vague mandate to the federal agencies to tighten immigration controls over employment-based work visas and can be broken down into the following points:
1. Relevant EO provision - "Sec. 2(b) Hire American. In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5))."
What does this mean:
It is not clear yet exactly what this section means as it is a very The referenced section of the Immigration & Nationality Act (INA) in Sec. 2(b) of the EO, INA § 212(a)(5) governs Foreign Labor Certifications (FLC).
What are Foreign Labor Certifications (FLC):
FLCs are generally required in order for an immigrant to obtain a Green Card based on employment. Foreign Labor Certifications are handled by the Department of Labor (DOL) and require employers to engage in very specific job recruitment steps. In order to obtain permission to file for a Green Card for an employee, Employer's must first look for a qualified U.S. Citizen or Permanent Resident to fill the position that they seek to hire the foreign worker for. To prove this, the employer will have to advertise the job position in accordance with the INA, keep track of all job applicants and provide legitimate reasons why the other applicants are not qualified for the position (for example, the job applicant did not have the required job experience or degree). The job recruitment steps are complex. time-consuming and expensive for employer's to engage in, but must be done to hire a permanent foreign worker.
FLCs also require proof that the foreign worker will be paid at least the prevailing wage for that particular profession in that particular area of the country, as well as that the advertised job lists them same requirements and renumeration as that actually offered to the foreign worker. Even prior to President Trump taking office, DOL is known to be require strict adherence to the law. For example. FLCs will be denied if the listed wage is a dollar off than the advertised wage.
What does effect will this have on foreign workers looking to obtain employment-based Green Cards:
How the broad mandate expressed by President Trump in the EO to rigorously enforce the laws governing FLCs remains to be seen. It does appear, however, that President Trump is asking the DOL and DHS to be much tougher in ensuring that FLC requirements are met by employer's before issuing approvals. In practice, it is unclear how DOL will carry out this mandate, as FLCs are often denied for technical and/ or clerical errors.
Further guidance from the Trump administration is needed before the reach of this section of the EO is known.
2. Relevant EO provision- "Section 5(b). In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries."
What does this mean:
President Trump has made many promises about reforming the H-1B visa program and this is his first authoritative directive made to accomplish that goal. Again, this vague provision does not provide practitioners or H-1B visa seekers much guidance on how President Trump plans to make these reforms. In fact, this provision simply instructs relevant cabinet members to look into the program and suggest reforms to the President. It should also be noted that other than ensuring strict compliance with current law, H-1B reform will need to be in the form of legislative action.
Further guidance from the Trump administration is also needed to understand how the President plans to carry out H-1B reform.
Overall Take-Away from the new EO "Buy American and Hire American."
As with the previous immigration-related EOs signed by President Trump, the new EO provides little more guidance than that contained the President's topical sound bites. Expect further policy memoranda and procedures to be released by DOL and DHS in the weeks and months to come.
Call an experienced immigration attorney immediately to find out if any of the Trump administration's new policies will effect your immigration status before it is too late!