President Trump's "Buy American and Hire American" EO Fosters Nativism, Although it Will Not Bring Immediate Change in the Law
On April 18, 2017, President Trump signed an Executive Order (EO) entitled “Buy American and Hire American”, stating that it will be U.S. government policy to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad”, as well as “to maximize…through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States”. The EO is very short, and while it speaks in broad, sweeping terms, it does not provide any specifics of how this will be implemented. Instead, it requests federal agencies, including the U.S. Department of Labor, the U.S. Department of Justice, the Department of State, and the Department of Homeland Security, to propose new federal rules to protect U.S. workers and to root out fraud and abuse in the immigration system. It specifically singles out the H-1B program and calls on federal agencies to “suggest reforms to help ensure that H–1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
However, it does not create any immediate legal changes to the H-1B program or to other work visa categories. This would take time, as after making reports to the President, the federal agencies would have to go through the rule-making process whereby they would draft and publish new proposed rules, and allow the public time to respond before issuing a final rule. Or, Congress would have to pass a new law changing the process.
On the other hand, President Trump’s new EO contributes to the negative rhetoric targeted at immigrants, and fails to recognize the valuable contributions that immigrants make to our economy and to creating jobs for US workers. It fails to acknowledge that most H-1Bs are for foreign workers to fill positions for occupations for which there is a shortage of US workers. The federal government has already acknowledged that there is a shortage of American workers to fill positions in the STEM (Science, Technology, Engineering and Math) fields, and its legislation reflects that. It is better to have a highly-skilled foreign worker come to the US with his or her family to fill a position, than to have that job shipped overseas and out-sourced. Not only would the US lose jobs but also these well-paid foreign workers become US consumers, spending money at local businesses in the community and stimulating the economy. Employers are willing to spend huge amounts of money on USCIS filing fees and other expenses to bring foreign workers here because they just cannot find enough US workers with the appropriate skills.
President Trump’s short EO has certain phrases that have become a mantra among US government bureaucrats, inflaming prejudices against foreigners, and negatively affecting the exercise of discretion in USCIS examiners’ adjudication of cases. USCIS examiners have a great deal of leeway to approve or deny employment petitions on behalf of foreign workers, and with a negative mindset contrary to the facts and the needs of companies and the economy, government workers once again are being encouraged to deny meritorious cases, harming America’s chances of attracting the best and the brightest, and hobbling economic advancement.