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Trump's "Buy American Hire American" Executive Order and the H-1b Visa

On April 18, President Trump signed an executive order, nicknamed the "Buy American Hire American" executive order, with the stated purpose of stimulating the U.S. economy. One section of the executive order is dedicated to the reform of the H-1B visa program, which currently allows 85,000 highly skilled foreign workers each year to accept temporary employment within the United States.

It comes as no surprise that this administration is pushing forward with H-1B visa reform. During the Presidential campaign, Trump made harsh statements about the program and promised to end what he described as a cheap labor replacement for U.S. workers. In fact, despite some dramatic headlines about “tightening the rules,” the executive order will have little or no immediate impact on H-1B visa holders or applicants.

Executive Order Provisions Relating to the H-1B Visa Program

Section 5 of the order requires 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 American workers in the administration of our immigration system. The order further directs the same group to suggest reforms to help ensure that “H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries.”

Unlike other mandates under the order, which include 150-220 day timelines, the immigration-related directives are to be completed “as soon as practicable.” The study itself could take months, and the need to pass legislation or introduce new regulations will further delay the ultimate impact of the process initiated by the Buy American Hire American executive order.

The Truth about H-1B Visa Holders

Contrary to this administration’s position, H-1B visa holders make significant contributions to business and industry in the United States. In particular, many key players in the U.S. tech industry are working in this country on H-1B visas. Top U.S. tech companies including Facebook, Google, Qualcomm and Apple employ a significant number of highly-skilled foreign workers through the H-1B program. The administration’s claim that these workers represent “cheap labor” ignores protections already built into the process which require that a U.S. employer pay an H-1B visa holder at least the “prevailing wage” for the role the foreign worker plays within the company.

Impact of the Buy American Hire American Order

Although actual changes to the H-1B visa program will likely not unfold in the immediate future, the Buy American Hire American executive order may still have an impact in the short-term. Both H-1B applicants and the companies that sponsor them have received a clear message about the direction of the program, giving both grounds for caution. It will be a loss to both the prospective employees and our society if talented workers are discouraged from pursuing roles with U.S. businesses because the future of the H-1B program is uncertain.

Options for such workers and the companies that sponsor them at this point may include:

  • Pursuing an H-1B visa for the 2019 cycle, as significant changes are unlikely before the petition period in April of 2018
  • Pursuing an L1 visa, if the company is international
  • Pursuing a country-specific option such as the TN visa
  • Pursing an O1 “extraordinary ability” visa

An experienced immigration lawyer can be your best source of information and advice regarding the best path toward a work visa. To learn more about your options in the changing business immigration landscape, contact us today.

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