The “Almost One Year” Anniversary of the “Buy American and Hire American” Executive Order - Articles

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Posted by: Terrence Olsen on Mar 20, 2018
On April 18, 2017, President Trump signed the Executive Order (EO) “Buy American and Hire American," which has two distinct components – buying American-made goods and enforcing immigration laws in order to create higher wages for workers inside the United States. The EO calls for a shift away from manufacturing goods outside of the United States to conducting production inside the United States.  
 
The two sides of Buy American and Hire American - products almost entirely created in the United States, and stricter immigration enforcement - work together to create the desired result of the Executive Order, which is protecting “American Workers." First, by mandating production to be conducted mostly inside the United States, Americans will in theory purchase exclusively American made products. Second, by rigorously enforcing tougher immigration policies towards foreign nationals, American owners of businesses will in theory hire more “Americans."
 
Hire American
 
The substantive portions of the EO related to Hire American are as follows: Secretaries of State, Labor, Department of Homeland Security (DHS) and the Attorney General, “shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect interests of U.S. workers in administration of our immigration system, including through prevention of fraud or abuse.” Furthermore, it states: “In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
 
When Buy American and Hire American was first announced, many immigration lawyers, and international business/trade lawyers were shocked about the intent and language of the EO but wondered how much of an effect the EO would have on immigration laws due to its vagueness. However, time has shown it has had a major effect. The following are some of the ways: 1) USCIS’s “Policy Memorandum: Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status” – meaning the USCIS can re-adjudicate H-1B extension petitions; 2) additions to the Foreign Affairs Manual (FAM), used by the Department of State consular officers, to keep the “spirit” of the EO in mind – remembering to protect American workers regarding wages and “prevention of fraud or abuse” when adjudicating H-1B, L, O-1, E-1, E-2 and P visas; 3) postponement and probable withdrawal of the International Entrepreneur Rule, which was expected to go into effect on July 17, 2017; 4) the new requirement for in-person interviews for all employment-based immigration cases, effective October 1, 2017; and 5) the proliferation of RFEs on H-1B applications.
 
Buy American
 
On the commerce/manufacturing side, within the first 150 days of the EO, federal agencies were required to develop federal programs, and rules to ensure that federal financial assistance awards, and federal procurements create a business environment in the United States for materials to be produced in the United States, and for products to be made entirely in the United States. Additionally, within the first 150 days of EO, all free trade agreements, and the World Trade Organization Agreement on Government Procurement were reviewed and analyzed with the intent of fulfilling the objectives of Buy American and Hire American. Within 220 days of EO’s issuance, the Secretary of Commerce along with the Secretary of State, the Director of the of Management and Budget, and the United States Trade Representative were required to submit a Report to President Trump regarding how to strengthen the implementation, and effect of Buy American and Hire American—specifically including domestic procurement preference policies and programs. Also, the required agencies must submit subsequent implementation reports on November 15, 2018, November 15, 2019, and November 15, 2020.
 
Conclusion
 
As time marches on, you will see the EO leaving the infancy period and transitioning to the toddler stage in a year or so.  And by 2020 and beyond, Buy American and Hire American will be a growing child with the ability to speak and argue for itself. And as a child often does, Buy American and Hire American will not only be learning only from others and its environment, but it will then be teaching others in turn and will be the focus of its world.
 
Even though Buy American and Hire American is less than a year old, it is very apparent that it is not going away anytime soon, and most likely will be here for a very long time. For example, as the Deferred Action for Childhood Arrivals Executive Order has shown to the American public that even if an Executive Order may later be viewed as unconstitutional and is fought in the court system, its effect(s), and its very life does not go away from the American culture, and people right away—if at all. Subsequently, even though the existence of this EO may not make sense right now, or if at all—with the passing of time, the changing of language, and with memory being less pungent— Buy American and Hire American is a fact, and item of essential detail which must be seen in its entirety of effect, and result.
 
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The author is Terry Olsen, the founder of his own immigration law practice, Olsen Law Firm, in Chattanooga, Tennessee.  His practice areas include both employment and family immigration law.  Mr. Olsen is the Chair of the TBA’s International Law Section. He may be contacted at tolsen@tlolaw.com or (423) 648-9390.