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Allen and Hodgman | “Hire American” – What does it mean for H-1Bs?

“Hire American” – What does it mean for H-1Bs?

On April 18, 2017 President Trump signed a new executive order described as “Buy American and Hire American.” News accounts and presidential speeches suggested the new Executive Order would severely restrict the availability of H-1B visas. This order came out just a few days after completion of the H-1B filing season and the H-1B lottery, when H-1Bs were already in the news. During the campaign, Trump had threatened to abolish the H-1B program entirely.

In reality, the new Order does not change the existing H-1B program in any way. The only specific reference to H-1Bs stated: “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.” That’s it! Four cabinet secretaries are ordered to “suggest reforms”!

The real purpose of the Executive Order is to stir up anger and hostility towards foreign workers in the U.S. Trump wants to spread the false myth that H-1B workers are causing unemployment among U.S. workers,  and depressing the wages of U.S. workers. The truth is that the average wage of H-1B workers is now over $80,000. In addition, an employer often will spend $5,000 or even up to $8,000 in filing fees and attorney fees to file an H-1B petition. No employer does this to save money or undercut their U.S. workforce. They are doing this because the foreign worker is providing skills and talents that grow the entire U.S. economy. The size of the U.S. workforce exceeds 150 million. The 85,000 new H-1B workers who are added each year make up one twentieth of one percent. This is not enough to have any detrimental impact on U.S. workers.

The real reform that is needed is to increase the number of H-1Bs to match the nation’s need for computer scientists, physicians, engineers, and other talented professionals. We also need to increase the number of green cards, so that H-1B workers, especially those from India, do not have to wait 15 or twenty years to finally become permanent residents of the United States.

Most of the changes to the H-1B program that have been mentioned by Trump officials require changes in the Immigration and Nationality Act, or changes to the regulations. These changes cannot be ordered by the President or administration officials unilaterally. They require action by the Congress, or rule-making through proper procedures including notice and comment. Along with the American Immigration Lawyers Association, we will continue to advocate again any attempt to restrict these valuable visa programs, and to advocate in favor of positive changes.