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Tightening the H-1B program through "Buy American and Hire American" rules

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By James Pittman 3 min read

As part of its policy push for reducing the number of skilled workers brought to the US under the H-1B program, the Trump admin has made the H-1B more difficult to obtain. A substantial step in this direction took place when Pres. Trump signed theBuy American and Hire Americanexecutive order on April 18, 2107 .

The Buy American provision established the policy of the executive branch to maximize, consistent with law, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States.

Within 60 days of the date of this order, the Secretary of Commerce and the Director of the Office of Management and Budget, in consultation with the Secretary of State, the Secretary of Labor, the United States Trade Representative, and the Federal Acquisition Regulatory Council, were required to issue guidance to agencies about how to make the assessments and to develop the policies required.

Within 150 days, federal agencies were to report on implementation to the Sec. of Commerce and the Director of OMB, and those secretaries were to report on the impact of implementation of trade agreements to which the US is a party. Further reports would be required at the 220 days mark and thereafter annually beginning in January 2019.

The Hire American portion of the order established the policy of the executive branch to increase enforcement and more rigorously apply standards for issuance of employment based visa categories, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).

(USCIS) Policy Memorandum PM-602-0157

On February 22, 2018, U.S. Citizenship and Immigration Services (USCIS) publishedPolicy Memorandum PM-602-0157, titled "Contracts and Itineraries Requirements for H-1B Petitions Involving third-Party Worksites." Among other things, the memo provides guidance on USCIS' interpretation of8 CFR 214.2(h)(2)(i)(B), a long-standing provision which which states that an H-1B petition "which requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training."

Will Employment Authorization Documents (EADs) for H-4 Visa Holders become a thing of the past?The Trump administration has indicated a desire to rescind the federal regulation allowing employment authorization for H-4 dependents of H1-B non-immigrants, which was issued by the Obama administration in 2015. This intention to revoke eligibility for EADs by H-4 holders was restated by USCIS in aletter dated April 4, 2018 to Senator Chuck Grassley. In June 2018USCIS issued a notice of proposed rulemakingrestating its plan to remove the H-4 visa from the classes of aliens eligible to apply for work authorization. However, as of the end of June 2018, DHS/USCIS failed to meet its deadline for the second time this year to promulgate specific rule language, which would have formally kicked off the process to terminate the EAD eligibility of H-4 non-immigrants. Once proposed rule language is issued there will be a period which may last 60 days for public comment before the rule becomes final.\ \ James Pittman is co-founder of Docketwise and was previously engaged in the private practice of US Immigration Law. He also regularly teaches Continuing Legal Education (CLE) classes on immigration law topics and legal ethics. He is admitted to practice in New York and New Jersey and is a graduate of Northeastern University School of Law.

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