President Trump Signs Executive Order on Government Contractors Use of Foreign Workers

Trump remarks “we’re finalizing H-1B regulations so that no American worker is replaced ever again.”

On August 3, 2020, President Trump issued an Executive Order on Aligning Federal Contracting and Hiring Practices with the Interests of American Workers. The Executive Order (EO) requires federal agencies to perform an internal audit of their contracting practices and the use of foreign workers by federal government contractors. By September 17, 2020, the Secretaries of Labor and Homeland Security are required to “take action, as appropriate and consistent with applicable law, to protect United States workers from any adverse effects on wages and working conditions caused by the employment of H-1B visa holders at job sites (including third-party job sites), including measures to ensure that all employers of H-1B visa holders, including secondary employers, adhere to the requirements of section 212(1) of the Immigration and Nationality Act (8 U.S.C. [§] 1182(n)(1)).”

The Immigration and Nationality Act requires employers, when applying to offer an H-1B visa, to state:

• “the employer did not displace and will not displace a United States worker . . . employed by the employer within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the application”;
• the employer “has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H-1B nonimmigrants . . . United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought”; and
• the employer “has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought.”

By December 1, 2020, the head of each government agency must conduct an audit of their contracting practices of contracts awarded in FY 2018 and 2019 and “submit a report to the Director of the Office of Management and Budget summarizing the results of the [audit].”