On April 18, 2017, at the headquarters of Snap-On Incorporated, a Wisconsin-based manufacturer, Donald J. Trump signed an Executive Order titled “Buy American, Hire American”. The Hire American portion, explained in all of two paragraphs in Section 5, requires the Attorney General and Secretaries of State, Labor, and Homeland Security to “consistent with applicable law, 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”. The second paragraph is a bit more specific inasmuch as it states that these folks ought to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” Among those in attendance were likely Snap-On’s H-1B employees, since the company is a perennial petitioner for H-1B workers at its Kenosha, Wisconsin location.[1] Of the items mentioned in the Executive Order, neither the wage requirements, the qualification requirement, nor the number of visas issued may be revised by the President alone. Why? Each are set by statute[2] and require approval by both the Senate and the House of Representatives in order to be amended. Of course, any lawyer or even history buff knows this. President Truman, for example, was frustrated by his inability to roll back the regional biases proposed in H.R. 5678, now known as the Immigration and Nationality Act of 1952.[3] So with that in mind, and setting campaign promises aside, what exactly does the Order accomplish? Simply stated – nothing – other than seeking suggestions of reforms from the agency heads. The H-1B: Perspectives on the U.S. Economy and Cybersecurity It is important to define the H-1B nonimmigrant category in its most basic terms. It is nothing more than a petition filed by a U.S. employer on behalf of a foreign worker to perform services in a:

  • specialty occupation;
  • services relating to a DOD cooperative research and development project or coproduction project; or
  • services of distinguished merit and ability in the field of fashion modeling.

An H-1B may only be granted to one who:

  • performs services in a specialty occupation requiring a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who has attained said baccalaureate or higher degree or its equivalent in the specialty occupation;
  • performs services of an exceptional nature requiring exceptional merit and ability relating to a DOD cooperative research and development project or a coproduction project provided for under a Government-to-Government agreement administered by the Secretary of Defense;
  • performs services in the field of fashion modeling and who is of distinguished merit and ability.

Employers seeking to hire an H-1B worker must affirm that hiring the foreign worker will not harm similarly employed U.S. workers. Specifically, they must attest, on a labor condition application certified by the U.S. Department of Labor (USDOL) that the employment of the H-1B worker will not adversely affect their wages and working conditions. In addition, employers must also provide existing workers with notice of their intention to hire an H-1B worker. Said notice explicitly states the intended occupation (including title), work location, prevailing and actual wage paid to be paid to the beneficiary. According to the U.S. Citizenship and Immigration Services (USCIS), this year’s new H-1B quota was, once again, reached in 5 days.[4] It appears that neither this administration’s posture toward immigrants, nor an increase in government filing fees imposed on H-1B employers were a deterrent to U.S. employers seeking H-1B workers. Perhaps, the administration’s belief concerning the H-1B visa program’s negative impact on American workers, wages, and the overall economy isn’t entirely accurate.[5] Certainly, the U.S. Chamber of Commerce has long since advocated an increase in the H-1B cap, arguing that the program creates jobs for Americans.[6] Similarly, a bi-partisan group of nearly 1,500 economists wrote an open letter to Mr. Trump expressing their broad consensus that immigration is one of America’s significant competitive advantages in the global economy.[7] The current annual H-1B statutory cap is 65,000 visas, with an additional 20,000  reserved for those who hold advanced degrees from U.S. institution of higher learning. Thus, since 2006, when the set aside was initiated, over 240,000 H-1B visas were granted directly to graduates of Master’s or Doctoral programs from U.S. universities. To put the economic benefit of this number in context, that is 240,000 out-of-state tuitions mostly being paid directly from student funds as opposed to grants, scholarships or aid. Nearly two-thirds of H-1B requests are in the Science, Technology, Engineering and Mathematics (STEM) fields. One STEM field receiving a good deal of attention lately is cybersecurity and, according to some reports, candidates in that field are in extraordinary demand.[8] It speaks to reason that many foreign advanced degree graduates from say Stanford, Harvard, Yale or the Massachusetts Institute of Technology are not fortunate to be selected in the H-1B lottery. One wonders if we’re better off sending these highly skilled cybersecurity experts back to work in their home countries? Placing arbitrary caps on the hiring of these highly skilled technologists is incompatible with not only our competitiveness, but also our security. There is a competing market for their services outside the United States, two well-paying examples are state-sponsored hacking and cybercrime. Google and Facebook, submitted 12,010[9] and 2959[10]  labor condition applications for H-1B petitions, respectively, between 2014 and 2016 alone. According to some reports, Apple, IBM, Amazon, Google and Facebook accounted for 56,511 labor condition applications during the most recent reported fiscal year.[11] These are all companies known as the paradigm for recruiting the most talented technologists globally.[12] As such, there is no reason to believe that they hire H-1B workers for any reason other than they have deemed them to be worthy candidates. Those shaping legislation in the digital age ought to better understand the significance of cross-border data flow to cybersecurity. The information and communications technology industry is crucial to all aspects of our economy and security. Consider, for example, the volume and sort of information these companies store, all of which is managed by a relatively finite talent pool.  Finally, we must come to terms with the fact that our future is robotics and artificial intelligence as opposed to coal. Those who have the best of breed technologists will win. Which begs the question, if we’re training them in our universities, who are we training them for? Buy American and the Global Economy It may come as no surprise to those who work on mergers, acquisitions, and divestitures that there really is no such thing as an American car company. Some 14 companies control 54 automobile brands.[13] Their respective supply chains have long since been so globally diversified that it would be meaningless to call a car American, German, etc. Some 5 companies control most of the world’s beer production.[14] Likewise, 10 companies own and control the vast majority of all consumer goods.[15] The Defense Trade is not far behind. The T-X program, for example, is the DOD’s competition to replace its trainer aircraft. Ultimately, whichever team is selected to make the aircraft will be an American defense contractor teamed with its Italian, Korean, Swedish, or Turkish global partners. The F-35 joint strike fighter components are being made in Australia, Canada, Denmark, Italy, the Netherlands, Norway, Turkey, and the United Kingdom. In attempting to exclusively Buy American, one is being tasked with an undertaking requiring a forensic science skillset. Existing Agency Action and the What to Expect in Hiring Foreign Workers On April 5, 2017, the USDOL announced plans to provide greater transparency and oversight in coordination by efforts by the U.S. Department of Homeland Security (USDHS) and the Justice Department. USCIS has previously established an email address[16] whereby both U.S. workers and H-1B workers may submit tips, alleged violations and other relevant information about potential H-1B violations. Said information may be referred to law enforcement agencies for potential prosecution. The USDOL also states its support of the Justice Department in cautioning employers who petition for H-1B visas not to discriminate against U.S. workers, and that it will continue to use of its existing authority to initiate investigations of H-1B program violators. For several years, the U.S. Department of State’s Consular posts have maintained Fraud Prevention Units that consist of a fraud prevention manager and staff who analyze individual fraud cases. These Units, along with USCIS continue to refer cases of suspected fraud or abuse to U.S. Immigration and Customs Enforcement (ICE).  Likewise, since 2009, the USCIS has maintained the Administrative Site Visit and Verification Program as an additional way to verify information in H-1B and L-1 petitions. Under this program, Fraud Detection and National Security officers make unannounced visits to collect information as part of a compliance review. While April 18 Executive Order is mostly lacking in specifics, we expect all of the agencies involved in immigration adjudication to concentrate heavily on enforcement and stricter adjudication of temporary worker petitions. For that reason, immigration matters must be entrusted to only the most experienced attorneys who are capable of dealing with not only agency adjudicatory matters but all aspects of federal investigations.

[1] http://www.myvisajobs.com/Visa-Sponsor/Snap/495106.htm [2] Immigration Act of 1990 (Pub.L. 101–649, 104 Stat. 4978, enacted November 29, 1990) [3] On June 27, 1952 Congress passed the bill over the President Truman’s veto. As enacted, H.R. 5678 is Public Law 414, 82d Congress (66 Stat. 163). Provisions of the Act excluded the likes of Gabriel Garcia Marquez and Pablo Neruda from the United States. [4] https://www.uscis.gov/news/news-releases/uscis-reaches-fy-2018-h-1b-cap [5] https://www.americanimmigrationcouncil.org/research/h1b-visa-program-fact-sheet [6] https://www.uschamber.com/above-the-fold/high-skilled-h-1b-visas-demand-outstrips-supply-again [7] http://www.newamericaneconomy.org/feature/an-open-letter-from-1470-economists-on-immigration/ [8] http://www.sandiegouniontribune.com/news/cyber-life/sd-me-connected-highered-20170417-story.html [9] http://www.myvisajobs.com/Visa-Sponsor/Google/225093.htm [10] http://www.myvisajobs.com/Visa-Sponsor/Facebook/189973.htm [11] http://fingfx.thomsonreuters.com/gfx/rngs/FACEBOOK-IMMIGRATION/010031Q63Y3/index.html [12] http://www.businessinsider.com/how-google-hires-exceptional-employees-2016-2 [13] http://www.visualcapitalist.com/14-companies-control-entire-auto-industry/ [14] http://www.visualcapitalist.com/5-big-companies-control-worlds-beer/ [15] http://www.visualcapitalist.com/wp-content/uploads/2016/07/consumer-brands-full-size.html [16] REPORTH1BABUSE@USCIS.DHS.GOV