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How President Trump’s Buy American, Hire American Executive Order has Affected H-1B Work Visas [infographic]

Written By The Shapiro Law Group on June 15, 2018

President Trump’s Buy American and Hire American Executive Order will enforce immigration laws with policies that award H-1B visas to only the most skilled or highly paid workers.

Are Foreign Workers in Danger?

A recent executive order that seeks to protect U.S. economic interests may take jobs away from foreign nationals employed in the U.S. with H-1B work visas. 

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H-1B Visas under Trump

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President Trump’s “Buy American and Hire American” order promotes American-made products and an American labor force for the production of certain goods. In April 2018, the order was unveiled at a Snap-on Tools firm in Kenosha, Wisconsin, a company that routinely buys products made in China and employs a large number of workers from other countries including China, Brazil, Argentina, and Sweden. At the Kenosha meeting, President Trump made it clear that H-1B visas should only be given to the most highly-skilled, highly-paid applicants and should never be used to replace American workers.

The executive order seeks to create higher employment rates and wages for U.S. workers and strengthen opportunities for the middle-class. The order seeks to prevent abuse and fraud within the immigration system. Section 5(b) of the order directs the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries (emphasis added). This may lead to American employers having to pay substantially more to their foreign workers who are employed on H-1B visas in response to the allegations of President Trump’s administration that the H-1B visa program provides unscrupulous business owners an opportunity to hire cheap foreign labor instead of qualified American workers.

The “Buy American and Hire American” executive order has already begun to change current USCIS H-1B work visa processing policies. Presently, USCIS is challenging H-1B visa extension applications if the sponsored employee continues to be paid an entry-level salary. Additionally, USCIS is challenging new H-1B visa applications by stating that a Level 1 entry-level wage paid to a foreign national new graduate, or even a higher Level 2 wage being offered to the foreign national, establishes that the sponsored position is not complex enough to qualify for the issuance of an H-1B work visa.  

The executive order does not set a timeline for the completion of a review of the H-1B program by all required agencies. Nevertheless, the administration’s final goal is to eliminate the present H-1B work visa program. Thus, the “Hire American” executive order may result in the enactment of laws that will have a substantial impact on U.S. employers who require H-1B workers to fill technical job positions.

Tightening the H-1B Visa Belt: Turning Foreign Workers Away

The H-1B program awards 65,000 visas per year to people with “highly specialized knowledge” and an additional 20,000 to foreign professionals with advanced degrees. The cap does not apply to petitions filed on behalf of certain workers who are deemed exempt or those who have already been counted against a previous cap. The number of H-1B visa applications submitted each year continues to rise and from FY 2008 through FY 2019, the number of submitted petitions exceeded the annual H-1B cap in just five days on seven occasions.

  • From FY 2015 to FY 2016, the number of H-1B visa petitions increased by 14% from 348,669 to 398,718. By FY 2017, USCIS had received 404,087 petitions. For the most recent filing period which began April 2, 2018, USCIS received 190,098 petitions in that quarter alone.
  • From FY 2015 to FY 2016, the number of petitions that were approved increased about 25 percent from 275,317 to 345,262. For FY 2017, just 298,045 petitions had been approved by November 15, 2017.
  • Out of 1,172,288 petitions filed in the last three years reported, just 953,736 were approved.
  • About 64% of petitions approved from the calendar year 2014 to 2016 were for beneficiaries who changed their status or extended their stay. In FY 2016, just 114,503 H-1B petitions that were approved were for initial employment.

With a growing number of foreign workers already getting turned away each year, tightening the H-1B visa belt will likely result in more petition denials and delayed processing for employers who are seeking to fill much-needed positions, especially in technology. In 2017, about 280,776 petitions filed on behalf of foreign workers were for computer-related occupations. Around 69% (237,837) of all petitions that were approved in FY 2016 were for workers in this field. Other major occupations that received large numbers of filings and approvals included those in agriculture, engineering, and surveying, administrative specializations, education, medicine, and health.

Studies show that had America not turned away approximately 178,000 H-1B petitions that were filed on behalf of workers in computer-related fields in the lotteries in 2007 and 2008, about 231,224 tech jobs could have been created for US-born workers in metropolitan areas across the nation in the two years that followed. How many more jobs America will lose as stricter regulations make H-1B visas more difficult to obtain is anyone’s guess.