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“Buy American and Hire American” Executive Order Calls for Change in H-1B Lottery System and Rigorous Immigration Enforcement

19 Apr

On Tuesday, April 18th, President Donald J. Trump signed the Buy American and Hire American Executive Order, which sets forth his Administration’s policy to “maximize . . . the use of goods, products, and materials produced in the United States” and to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad.”

Federal agencies are subject to a number of laws that require preference for “buying American” goods and services.  The Administration believes these laws have not been carefully followed and that too many waivers have been allowed.  By this “Buy American and Hire American” order, he directs agencies to minimize the use of waivers and to assess their compliance with the law and develop and propose policies for agencies to ensure that “Federal procurements maximize the use of materials produced in the United States.”

The “Hire American” portion of the Executive Order calls on the Secretaries of State, Labor, and Homeland Security and the Attorney General of the United States to “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.”  Specifically, the agencies are directed to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

While the order states the broad policy and directives to the agencies, the order does not set forth specific ideas or proposed actions to further the policy.  Regulatory action might include a change in administration of the annual H-1B quota to favor petitions that offer the highest salaries or are filed for those with advanced degrees.  Current regulations award H-1B visas under the annual quota by random selection, the so-called “lottery.”  President Trump has criticized this process and would prefer movement to a merit-based allocation system based on highest wages or highest education or skill level.

The Immigration & Nationality Act provides that the H-1B quota numbers are to be allocated “in the order in which petitions are filed for such visas.”  By CIS regulation the CIS uses a lottery for administrative convenience in selecting petitions when there is no way to specifically determine the precise order in which many thousands of petitions are received, and when the quota is exceeded by filings arriving at the same time.  A rule that prefers one filing over another filing received at the same time based on policy reasons not articulated in the Immigration & Nationality Act would appear to be a rule that enacts policy rather than a rule for administrative convenience in implementing the policy already set forth by Congress.  If a court were to determine that the rule is policy making in nature, it is possible that the rule could be determined to be contrary to the statutory intent of Congress, which was to award H-1B visas as nearly as possible on a first-come-first-served basis.  Such limitations on rule-making authority underscore the limitations on presidential authority with respect to immigration law.  Because the H-1B program was established by Congressional legislation, wholesale changes to the program would require further legislation.

In addition to directing agencies to consider changes in the H-1B lottery system, the Executive Order also calls for rigorous enforcement of immigration laws.  Immigration attorneys have already seen an increase in the rate of Requests for Further Evidence (RFEs) issued by U.S. Citizenship & Immigration Services (CIS).  Such requests challenge the nature of the position offered – whether it is a “specialty occupation” that normally requires a bachelor’s degree or higher in a specific specialty field – and question the individual’s qualification for employment in the specific specialty field.  This trend is likely to continue as U.S. CIS and other agencies move forward in implementation of the new Administration’s enforcement-driven policies.  Foster will continue working closely with petitioning employers to evaluate individual case facts and develop appropriate supporting documentation for filing H-1B petitions aimed at addressing these and other CIS challenges.

Foster will provide additional updates on future H-1B program changes or legislation which may follow this Executive Order via our firm’s website at www.fosterglobal.com.