Trump Executive Order Mandates Review of H-1B Program

On April 18, 2017, President Trump signed an Executive Order entitled "Buy American and Hire American." Its stated object was to “promote economic and national security and to help stimulate economic growth, create good jobs at decent wages, strengthen our middle class, and support the American manufacturing and defense industrial bases . . . .”

To that end, the order states that, “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)).” The order does not indicate what portions of the law it feels were not rigorously enforced in the past.

In terms of actual impact to companies in the U.S. or would-be H-1B applicants, the order says that, as soon as possible, the heads of the State Department, Justice Department, Labor Department, and Department of Homeland Security must “suggest reforms to help ensure that H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries.”

What sorts of reforms is left to question. In this regard, however, the press has paid particular attention to the seeming randomness of the H-1B lottery—though often failing to point out that every H-1B applicant must still meet the basic (and demanding) qualifications for the visa. The lottery (which is not part of the law, but a practical administration method that is utilized virtually every year) simply addresses the fact that more qualified applicants apply every year than visas are available for. The U.S. government needs a way to dole them out.

Trump’s order mandates that the same group of department heads “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.” Again, the order states nothing about what particular forms of fraud or abuse it sees as having been overlooked in the past.

As many experts have noted, the net result will be no immediate changes or impact on H-1Bs visa applicants or companies seeking to hire them. It merely proclaims a problem and orders others to do something about it.

AILA President William A. Stock described the order, in an April 18 press release, as, "bring[ing] to mind a famous phrase from Shakespeare's MacBeth: 'full of sound and fury, signifying nothing.'” He added, “While the agencies are being asked to undertake a review of the H-1B program, the reality is that many of the changes contemplated by the administration will require legislative action, or at minimum, the lengthy rulemaking process.”