BUY AMERICAN HIRE AMERICAN, TRUMP 2.0, LET'S GO TO FEDERAL COURT!

The second Trump term is likely to bring back BAHA (Buy American Hire American), resulting in more arbitrary and capricious government decisions, but also more opportunities to litigate in the federal courts against wrongful decisions by DHS, USCIS, DOS and others.

While the BAHA policy from the first Trump term purported to protect American workers and incentivize reshoring, in actuality it created more arbitrary, capricious and inconsistent government decisions due to the broad discretion it provided to US government employees, such as DOS Consular Officers and USCIS Adjudications Officers, to substitute their own judgment and biases for objective standards found in the law.?

In turn, this upcoming rash of inconsistent government decision-making during the second Trump term will provide opportunities to contest government action in federal court, especially since Chevron was overturned in Loper Bright Enterprises v. Raimondo, 114 S.Ct. 2244 (2024).

On April 18, 2017, President Trump signed an Executive Order (EO) entitled “Buy American and Hire American”, stating that it would be U.S. government policy to “rigorously enforce?and administer the laws governing entry into the United States of workers from abroad”, as well as “to maximize…through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States”. The EO spoke in broad, sweeping terms. It called on the U.S. Department of Labor,?the U.S. Department of Justice, the Department of State, and the Department of Homeland Security, to propose new federal rules to protect U.S. workers.?It specifically singled out the H-1B program to ensure that H–1B visas are awarded to the most-skilled or highest-paid petition beneficiaries, paving the way for later proposed rules which would basically eliminate the chances of F-1 students to obtain H-1B visa numbers or status.

President Trump’s BAHA policy contributed to the negative rhetoric targeted at immigrants, and failed to recognize the valuable contributions that immigrants make to our economy and to creating jobs for US workers. It fails to acknowledge that most H-1Bs are for foreign workers to fill positions for occupations for which there is a shortage of US workers. The federal government has already acknowledged that there is a shortage of American workers to fill positions in the STEM (Science, Technology, Engineering and Math) fields, and its legislation reflects that. It is better to have a highly-skilled foreign worker come to the US with his or her family to fill a position, than to have that job shipped overseas and out-sourced. Not only would the US lose jobs but also these well-paid foreign workers become US consumers, spending money at local businesses in the community and stimulating the economy. Employers are willing to spend huge amounts of money on USCIS filing fees and other expenses to bring foreign workers here because they just cannot find enough US workers with the appropriate skills.

President Trump’s short EO had certain phrases that became a mantra among US government bureaucrats, inflaming prejudices against foreigners, and negatively affecting the exercise of discretion in USCIS examiners’ and Consular Officers’ adjudication of cases. For example, even if an applicant already had an approved PERM labor certification that there was a shortage of US workers, or an H-1B already had a approved LCA that the employer would pay the prevailing wage or actual wage from the US Dept of Labor, whichever was higher, and provide the same working conditions as provided to US, and submitted a 9-inch or 12-inch package of documents, there was a dramatic increase in RFEs (Requests for Additional Evidence) with USCIS as well as denials with USCIS and DOS, even though sponsoring employers had already complied with the provisions of the statute and regulations.

Additionally, the prior Trump administration USCIS routinely challenged H-1B petitions that had a Level I wage, for entry-level professional positions in a specialty occupation, either as not being a specialty occupation due to the Level I wage, or as having job duties that really required a higher wage level.? This discretionary policy mostly harmed F-1 foreign students who obtained H-1B visa numbers.

Recall that during the prior Trump administration, there was none of the positive policy we have now regarding STEM NIWs, EB-1A and O-1s.? The BAHA policy did not recognize the need for foreign talent and expertise in the STEM fields, and also applied to those foreign nationals in STEM fields.

The BAHA policy was also added to the Foreign Affairs Manual (FAM), instructing Consular Officers to adjudicate cases “with this spirit in mind”, basically inviting them to go beyond the statute and regulations in adjudicating employment-based cases, and exert their own personal whims and biases in making decisions about who should get a visa. This negativity seeped into all other areas of employment-based immigration, such as for example, L-1s and E-2s.

However, along with that discretion, inconsistency, and the “culture of no” now, in 2024, there is greater opportunity for US employers to challenge any future wrongful decisions by the second Trump administration due to the recent US Supreme Court decision in Loper Bright Enterprises v Raimondo, 144 S.Ct. 2244, 603 U.S. __, 219 L.Ed.2d 832 (2024), overturning Chevron and holding that the Administrative Procedures Act (APA) requires the federal courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because the statute (such as the INA, Immigration and Nationality Act) is ambiguous. Article III of the US Constitution assigned to the federal courts the power to adjudicate cases and controversies, and the final interpretation of the law would be up to the courts.

Thus, US employers who petition for foreign national workers should be willing to fight in federal court unfair, inconsistent and arbitrary decisions by the second Trump administration.? This writer, for one, is ready.? Bring it on! #BAHA #BuyAmericanHireAmerican #Trump

This article is for informational purposes only and is not meant as legal advice. Copyright 2024 ? Heidi J Meyers, all rights reserved.

?

?