President Trump Signs Executive Order to “Buy American, Hire American”; Could Prove Problematic For H-2B Program As 2015 IFR Is Finalized

by Amanda DeVincenzo/Wendel Hall

Last week, President Trump followed up on his campaign promise by signing the “Buy American and Hire American” executive order to reform U.S. trade and immigration policies. Under this order, it is the policy of the executive branch to buy only goods, products, and materials produced in the U.S.; and to regulate requirements for temporary foreign workers entering the United States. However, the guidelines on how federal agencies will administer and enforce the provisions of this order are vague and symbolic. Read the full text of the order here.

            What Does The Executive Order Say?

The “Buy American” Provision

Section 2(a) of the executive order directs each agency to judiciously monitor, enforce, and comply with ‘Buy American Laws’ “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.”

The “Hire American” Provision

Section 2(b) of the executive order directs the executive branch to enforce and administer the regulations for temporary foreign workers entering the U.S. The basic goal of the “Hire American” provision is to protect hard-working American workers from being displaced for cheaper foreign labor.

            What Does It Mean?

To implement this directive, § 5(a) directs the Attorney General and Secretaries of State, Labor, and Homeland Security 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.”

Nothing in the order’s text specifically calls out the H-2B visa program. But that doesn’t mean we’re safe. The involvement of Attorney General Sessions is worrisome and if criteria similar to those used for the H-1B program are used, the H-2B program could be in trouble. So, too, would be the temporary workers, the employers who need them to stay in business, and the Americans who benefit from the economic stability that low-skilled, temporary, foreign workers provide.

Future Of H-2B Program Is Unpredictable As 2015 IFR Is Finalized

The H-2B program hangs in the balance while the 2015 Interim Final Rule is finalized. DHS and DOL jointly issued the interim rule on April 29, 2015, to change the temporary employment certification process and to add expensive worker protections that make it more difficult to use the program without actually helping workers.

Given DOJ’s, DOL’s, and DHS’ past hostility to the H-2B program, we are concerned that they could use the process of finalizing the IFR to make the H-2B program even less workable for those who need it.

With an executive agenda focused on ‘giving Americans their jobs back’, the direction of immigration policy and foreign-worker programs in the U.S. is unknown. Hall Law Office will watch developments closely. Check back for updates on this and other actions that affect the H-2B program.