Buy American Hire American Executive Order

August 28, 2017

 

On April 18, 2017, President Trump signed Executive Order 13788 entitled, "Buy American and Hire American."

Read Executive Order 13788

According to an April 17, 2017 White House press briefing:

  • Buy American refers to a set of procurement laws about how goods and manufactured products are obtained and how they’re used in federal projects or federally funded projects.
  • Hire American generally refers to the body of law and policy concerning how our immigration, visa and guest worker programs are operated to ensure proper protections for American workers.

This NAFSA resource focuses on the "Hire American" provisions of the executive order, particularly those that concern the H-1B Specialty Worker program, which is the standard professional "work visa" category.

NAFSA will update the advisory as both analysis and roll-out develop.

Summary

Seeking to "create higher wages and employment rates for workers in the United States, and to protect their economic interests," this executive order:

  • Commits the executive branch to "rigorously enforce and administer the laws governing entry into the United States of workers from abroad"
  • Calls on the Departments of Homeland Security, State, Labor, and Justice 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, including through the prevention of fraud or abuse"
  • Calls on the same agencies to "as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries"

Details

Regarding the "Hire American" policy in general, Section 2(b) of the executive order states that:

"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))."

Most of the executive order establishes directives for the "Buy American" component, reserving a very brief Section 5 to handle the "Hire American" component.  Section 5(a) contains a general call for the Departments of Homeland Security, State, Labor, Justice to propose new rules and issue new guidance where needed, "to protect the interests of United States workers." That general call would apply to all employment-based programs, both permanent and temporary. Section 5(b) calls on the same agencies to "suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries."

Sec. 5. Ensuring the Integrity of the Immigration System in Order to "Hire American."

(a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, 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, including through the prevention of fraud or abuse.

(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.

 Officials at the April 17, 2017 press briefing said that the executive order would:

  • Call for the strict enforcement of all laws governing entry into the United States of labor from abroad for the stated purpose of creating higher wages and higher employment rates for workers in the United States.
  • Call on the Departments of Labor, Justice, Homeland Security and State to take prompt action to crack down on fraud and abuse in our immigration system in order to protect workers in the United States and their economic conditions.
  • Call for enforcing our guest worker programs in a way that they don't become a means for replacing or undercutting American labor at less cost.
  • This would apply across the board, but, in particular, the executive order has an additional clause on the H1B visa program, and calls on those same four departments to put forward reforms to see to it that H1B visas are rewarded to the most skilled or highest-paid applicants.

Specific Components

The executive order uses specific phrases or terms that can have a variety of meanings. The earliest indicator of what these phrases and terms meant at the time the executive order was signed was the April 17, 2017 press briefing. What follows is a NAFSA correlation of executive order phrases to background briefing comments, which might help illustrate the scope and perhaps the direction that some of the reforms called for by the order might take.

EO Phrase

Press Briefing and Other Commentary

"fraud and abuse"

The "administration official" presenting the press briefing stated: "Fraud and abuse should be understood as different things. Fraud is self-explanatory, but an abuse of the H1B visa program is to bring in a worker not because you need their skills or talent, but for the purpose of undercutting the American worker. That's the definition of abuse that we're using.

The background briefing also speaks of "enforcing our guest worker programs in a way that they don’t become a means for replacing or undercutting American labor at less cost," as an underlying goal of the executive order.

The administration official also referenced use of the H-1B program "to replace American workers," spoke of "individuals who had been displaced by abuses in our guest worker programs," and mentioned a "'60 Minutes' special that was aired recently on this very topic," in an apparent reference to the March 19, 2017 episode of CBS’ show "60 Minutes," entitled "You're Fired," which focused on companies that reduce personnel costs by contracting with outsourcing firms that use H-1B workers, resulting in the displacement of the companies’ US workers.

NAFSA note: Even before the executive order was signed, the administration had announced a tightening of H-1B enforcement, as described in these notices published by USCIS:

 

"as soon as practicable"

The executive order does not specify a particular date or number of days, but rather directs the agencies to begin working to implement Section 5 "as soon as practicable." When asked about the timeline in the press briefing, the "administration official" stated: "It says to basically move as soon as practicable.  In other words, we think that we - the agencies are ready to get going on this right away, and we think that they’ll be able to move quickly, consistent with all applicable law and regulatory process."

NAFSA note: Generally, statutory changes that must be made by Congress take the longest to achieve, followed by regulatory changes that must be done by the agencies, followed by policy changes, which can be done by the agencies more quickly. For background, see NAFSA's resources, Practical Immigration Concepts in a Time of Change, and Basics of Rulemaking Under the APA.

"reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries"

The executive order does not go into detail about what kind of reforms might be considered "to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries." The April 17, 2017 background briefing spoke of the "most-skilled or highest-paid" goal mostly in the context of the "H-1B lottery," under which the 85,000 H-1B slots available under the annual H-1B cap are distributed to cap-subject petitioners.

The administration official presenting the April 17, 2017 background briefing also suggested several examples of administrative changes that could be considered, including:

  • "Adjust the lottery system to give master's degree holders a better chance of getting H1Bs relative to bachelor's degree holders."
  • Increase the fees for H1B visas.
  • Adjust the wage scale towards "a more honest reflection of what the prevailing wages actually are in these fields."
 

"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"

The press briefing did not specifically address a review of current rules and guidance, but this phrase of the executive order implies that immigration categories with an employment element will be reviewed.

On August 27, 2017, the Wall Street Journal reported that the administration is "considering major reductions in cultural exchange programs, including those for au pairs and summer workers," and that the J-1 camp counselor, trainee, and intern categories are also being reviewed.