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The Trump-ian Era of “Buy American, Hire American” Is Now Her

On April 18, 2017, President Donald Trump’s Executive Order (“EO”) “Buy American, Hire American” was passed in an effort to help American workers whose jobs are considered to be threatened by skilled, immigrant workers. This new EO aims to create higher wages and employment rates for United States workers, while ensure that only those “most-skilled” immigrant workers are allowed to work and obtain certain employment visas. According to a White House news release, it shall be the policy of the Executive Branch to rigorously enforce and administer laws government entry into the United States by workers from abroad, including section 212 (a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182 (a)(5)).

The EO also directs the Department of Homeland Security (“DHS”) to ensure that polices are advanced to help ensure H-1B visas are awarded only to the most-skilled of H-1B recipients. Policy changes currently underway to ensure the proper implementation of the new executive order. Additionally, new initiatives are also being created for fraud and abuse prevention within the immigration system. The new executive order intends to protect the interests of United States workers that are able and capable of doing the work of H-1B workers.

Currently, USCIS is encouraging all employers to use E-Verify to review the information for all new hires – both U.S. workers and foreign workers using employment visas. E-Verify is a database that allows the comparison of information from Form I-9, Employment Eligibility, to Department of Homeland Security, to Social Security Administration, and Department of State to ensure that all workers whom have been employed are authorized to work in the U.S. USCIS is also currently working on enhancing the detection of fraud and prevention of fraud by making it easier for the public to report abuse if abuse is detected. USCIS is now providing easy ways for the abuse or potential fraud to be reported and has created the following two email addresses for the report of such abuse and fraud:

As a result of these new policies that USCIS is in the process of implementing, the public is also being encouraged to report all assertions of fraud committed by employers as well as employees. Examples of H-1B fraud indicators may include:

  • The H-1B worker is not or will not be paid the wage certified on the Labor Condition Application (LCA).

  • There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers.

  • The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description.

  • The H-1B worker has less experience than U.S. workers in similar positions in the same company.

  • The H-1B worker is not working in the intended location as certified on the LCA.

  • Protections for H-1B Workers Who Report Suspected Fraud or Abuse.

In addition, an H-1B worker may be compensated by certain protections if the worker reports any kind of suspected fraud of abuse. In an effort to prevent abuse or fraud, USCIS is working on enhancing information sharing across three government entities. These entities include the Department of State, Department of Labor, and Department of Justice. The new information sharing is also meant to streamline and improve how visas are issued.

In a new policy memorandum released on October 23, 2017, USCIS indicates that it is now instructing officers to review all extension applications with the same scrutiny as initial applications.H-1B Visas, which were created in 1990 to bring foreign workers with specialized training or a bachelor’s degree to work in a field where there are a lack of qualified Americans, could soon be a thing of the past as the Trump Administration attempts to fine tune the process following the Hire American Executive Order. The Trump administration has already begun a process to review whether or not to limit time extensions for H-1B visa holders to promote the hiring of U.S. Citizens.

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