What Employers of High-Skilled Foreign Workers Need to Know about President Trump’s “Buy American and Hire American” Executive Order

Authored by Diane E. Metzger

Apr 20, 2017

April has brought a flurry of immigration updates which are of particular interest to employers of high-skilled H-1B workers, the latest of which is President Trump’s “Buy American and Hire American” Executive Order signed on April 18.

In Section 5 of the Executive Order, President Trump directs the agencies that handle immigration matters (i.e., Dept. of Labor, Dept. of Justice, Dept. of Homeland Security, and Dept. of State) to suggest updates to the H-1B program and review all immigration programs to reduce any potential fraud and abuse.

Although the Executive Order lacks any substantive details on any specific desired changes to the H-1B program, the Executive Order does request that the designated agencies “suggest reforms to help ensure that H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries.” This, combined with prior statements from the Trump Administration, indicates that the Administration wishes to prioritize H-1B visas for those individuals who hold a Master’s degree and are paid a high salary.

It is important to note that this Executive Order has no immediate effect on the H-1B program as many of the changes hinted at by the Trump Administration will require legislative action or administrative rulemaking before actually becoming law.

While more sweeping changes to the H-1B program will take some time, H-1B employers can immediately expect to see increased monitoring of the H-1B program, heightened scrutiny on immigration applications, and a sharp increase in worksite audits.

As the vast majority of H-1B employers fully comply with the H-1B program, this Executive Order should not be a huge concern. H-1B employers are already required to comply with strict wage obligations set forth by the Dept. of Labor, so in many ways this is nothing new.

One change H-1B employers may see on the horizon is a revision to the wage system used by the H-1B program, which could include changing the system from a 4-level wage system to a 3-level wage system. As this wage system is based on an average of market wages for the various metropolitan statistical areas, and as most H-1B employers are already paying above market salaries for these positions, most H-1B employers will not likely be greatly affected by such changes.

As always, however, in this heightened era of immigration compliance, employers of high-skilled workers should remain vigilant to ensure that any necessary H-1B amendments are filed in a timely manner to inform the government of any material changes to an H-1B employee’s employment, such as a change in worksite location, job duties, etc.

If you have any questions regarding the Executive Order or have any questions related to an immigration matter please contact immigration attorney Diane E. Metzger.

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