President Trump issued yet another executive order addressing immigration issues on Tuesday, April 18, 2017. This order, entitled “Buy American and Hire American,” addresses federal procurement policies and reiterates the established policy to purchase goods manufactured in the United States. The order also addresses the H-1B visa. While it does not change any law, regulation or policy, it comes only one day after USCIS once again announced that 199,000 H-1B petitions were received during the first five business days of April to overwhelm the 85,000 limit on visas for the next fiscal year.
Substantively, the executive order merely orders the federal agencies that administer the H-1B program to enforce all laws related to the H-1B visa, something the federal government is already required to do. In addition, the President has ordered these agencies to examine how the program can be improved to protect American jobs. However, the President clearly intends this executive order to focus attention on the H-1B visa. This was made clear in the “Gaggle” published on the White House website earlier the same day. This “Gaggle,” a transcript of a conversation between an anonymous “Senior Administration Official” and reporters aboard Air Force One, was published on the official White House website. It is not clear how a document published on this website is “not for attribution” or aligns with President Trump’s criticism of anonymous sources, but nevertheless, it is a discussion of the executive order and seeks to provide some insight into the thinking behind the order.
Several issues surrounding the H-1B visa program were discussed, and it is clear that the President hopes the agencies will consider and recommend revisions to the regulations or statutes. However, there were no specific proposals and no proposed changes. When asked if the H-1B lottery was going to be eliminated or the prevailing wage standards revised, the Senior Official merely responded that the President expected the relevant agencies to make recommendations.
The H-1B visa program is governed by statutes and regulations. The statutes can only be changed by Congress, who has shown for many years that the partisan bickering renders it incapable of passing legislation dealing with immigration. The Administrative Procedure Act requires that regulations are published by the respective agencies in draft form to provide interested members of the public an opportunity to comment on proposed changes. Following a comment period, the agency must then respond to the comments and provide reasoned, fact based responses to the comments, adjusting the final regulation to take into account suggestions from the public. The regulations must comply with the statutes passed by Congress.
Thus, any changes to the H-1B program are months, if not years away, and conclusions as to what those changes might mean are far from certain. While the tone of the President’s announcement and his policies generally provoke fear among immigrant communities and employers, this executive order lacks substance. There will be time to assess suggested changes and respond appropriately in the months and years to come, but for the time being, this executive order suggests that we should continue to watch the President and advocate for rational policies that employers know are necessary for their business operations.