Trump’s Executive Order Won’t Give Tech Clarity on H-1B Visas

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During a scheduled trip to Wisconsin tomorrow, President Trump will sign a long-awaited executive order that aims to address fraud and abuse in the visa program tech companies use to hire high-skilled foreign workers. As a candidate, Trump vowed to kill the H-1B visa, calling it “very, very bad for workers.” Tech industry leaders, who have pushed for more H-1B visas, found the president’s threats troubling and vague. For anyone seeking clarity, tomorrow’s executive order seems to offer more questions than answers.

The “Buy American, Hire American” order seeks to reform both immigration and federal procurement. The latter pushes for policies that would prioritize American-made materials in government construction and manufacturing programs. But for Mark Zuckerberg and Bill Gates, some of the most prominent technologists championing the H-1B visa program, the part dealing with prioritizing American workers will hold the most interest. They’re among the long list of CEOs who have argued for years that they need these visas to fill a serious tech talent shortage in the country. Opponents of the program argue that some tech firms merely use these visas as an excuse to hire cheap foreign labor.

The White House didn’t share the text of the order as of Monday night, but a senior White House official said it calls on the Department of Labor, the Department of Homeland Security, and the State Department to submit a list of administrative and legislative reforms that would curb abuse in the H-1B system. That could entail efforts to crack down on outsourcing firms that hire workers for entry level jobs and pay them below the market rate. It might mean prioritizing visa applicants with master’s degrees over applicants with bachelor’s degrees to ensure visa holders have truly specialized skills. It might even lead to increases to the fees companies pay when applying for these visas. Some of these changes would require congressional approval. Some wouldn’t, but the order will stop short of ordering any of these policies directly. Instead, it leaves the three departments to recommend changes.

“The president doesn’t need to get into that level of detail in an executive order,” a senior White House official told reporters Monday. “It sets the policy. Once the agencies understand the policy, they use that to inform how it’s actually implemented.”

For immigration advocates, that means continuing to hope for the best and plan for the worst. “Nothing leads me to believe these are going to be actual efforts to fix the program as much as they’d be efforts to dismantle the program,” says Ali Noorani, executive director of the National Immigration Forum. “I’m happy to be surprised.”

Noorani is quick to note that the H-1B program desperately needs reforms, as is Todd Schulte, president of the tech-backed lobbying firm FWD.us, which Zuckerberg founded. But so far, it remains unclear whether the executive order will primarily impact firms that use these visas to undercut Americans’ salaries or just make hiring foreign talent tougher for every firm.

“We hope the administration will both crack down on people who are abusing the system and make it easier for the best and brightest to be able to come here,” Schulte says. “As opposed to efforts that make the employment-based immigration system more bureaucratic and expensive for everyone.”

Leading By Which Example

That the Trump administration would take such a light-handed approach to high-skilled immigration reform, even as it’s taken such an aggressive approach to undocumented immigration, may reflect the intra-White House rift between chief strategist Steve Bannon’s nationalist faction and the business-minded, globalist faction led by Trump son-in-law Jared Kushner. Bannon has argued that the large number of immigrant CEOs in Silicon Valley undermines “civic society.” This order gives President Trump the flexibility to tell his base he’s cracking down on H-1B visa abuses without actually enacting any immediate changes that might upset the business community.

“One should not mistake PR for policy,” warns Bruce Morrison, a former Democratic member of Congress and a vocal H-1B critic as a lobbyist for IT workers. Morrison notes that the administration could have directed the same departments to recommend reforms without issuing an executive order at all, but that wouldn’t have garnered quite as much attention.

“The media just follows along and says, ‘Oh, the president is issuing another executive order. He’s changing the world,’ but he’s not,’” Morrison says.

‘Nothing leads me to believe these are going to be actual efforts to fix the program.’ Ali Noorani, National Immigration Forum

Indeed, the administration introduced the order in an almost celebratory fashion. In a press briefing, a senior White House official praised the measure as “a total transformation of the H-1B program” and said that “just the acknowledgment of the problem in and of itself is quite remarkable.”

The official said that whether the president issues specific regulations or not, the executive order shows he is “leading by example.” And yet, when asked why Trump employs foreign workers at his own hotels, including Mar-a-Lago, the official suggested there’s a difference between the example the president sets in public and the example he sets in private.

“The job of the president of the United States is to set policy for the federal government,” the official said. “Any questions about his private company, I’m not able to speak to or answer.”

Still, Trump’s hotels continue to hire foreign workers for hospitality jobs. These are mostly workers on so-called H-2B visas, not the high-skilled H-1B variety. But whatever the job, the overall message from the president to businesses remains the same: They should do as he says, not as he does.

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