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Trump's "Hire American" Executive Order is Clearly Against the Law in Many Instances. Why Hasn't it Been Challenged in Court? Roger Algase

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This post will begin a serious of comments devoted to the issue of whether current administration policies are consistent with the obligation of USCIS and other immigration agencies to provide fair decisions on employment-based petitions, based on the applicable laws and regulations, rather than on whether the president would prefer a specific result in keeping with his "Buy American, Hire American" executive order.

As recent ilw.com articles by other attorneys have shown, this issue has been particularly acute this year in the area of H-1B petitions and the hurricane of RFE responses, in many cases of highly questionable competence and objectivity - something which I have also been facing and which I will write about more specifically in upcoming comments.

But by way of introduction to this topic, I will start with a very basic question: Is the president's "Hire American" immigration policy consistent with the law?

There are great number of employment based non-immigrant visas (I will leave a discussion of employment-based green card categories for later). A few of them contain requirements intended to benefit US workers specifically - notably in the H-1B prevailing wage and LCA regulations, and in the job creation requirements of E-2 and EB-5 investment visas.

But, except for the H-1B regulations requiring "H-1B dependent" employers or "willful violators" to recruit US workers first, and for H-2B visas which specifically require a Labor Certification, there are no NIV categories which specifically require US employers to reject a foreign worker in order to "Hire American".

Despite that fact that Trump's "Hire American" order has no basis in law as a general matter, and actually conflicts with the INA in instances such as the above, USCIS is now issuing RFE's and denials in petitions where the obvious motivation seems to be to prevent US employer from hiring foreign workers on any pretext imaginable, as in a November 15 Immigration Daily article by Cora-Ann V. Pestaina, Esq. dealing with refusal to accept valid expert opinion letters; or, in some of my own cases, outrageously incompetent, distorted or even self-contradictory USCIS interpretations of the crucially important OOH Handbook which make fair and objective H-1B adjudications all but impossible.

Since the "Hire American" executive order is very arguably encouraging, if not actually directing, such skewed and distorted USCIS decision-making, isn't the time ripe for a court challenge of this order, just as the legality of his Muslim ban immigration order was challenged (on other grounds, of course), with a considerable amount of success to date?

If the president is allowed to continue to write his own immigration laws or dictate immigration policies through executive orders, especially ones that contradict existing law, without going to Congress for authorization, America's immigration system will be in serious trouble. So will our democracy.
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Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping clients from diverse parts of the world with H-1B petitions and other employment and family-based immigration applications for more than 35 years. Roger's email address is algaselex@gmail.com

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Updated 11-16-2017 at 04:26 PM by ImmigrationLawBlogs

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Comments

  1. ImmigrationLawBlogs's Avatar
    Be patient Roger. Only three things in life are certain, death, taxes, and that the courts will invalidate all of Trump's executive orders. No, I forgot one, that Roger will say it will lead to the destruction of Truth, Justice, and the American Way.

    Nolan Rappaport
    Updated 11-16-2017 at 06:58 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Perhaps Nolan will feel inclined at some point to respond to the merits of my comment, namely that Trump's "Hire American" executive order is illegal because its overall purpose directly contradicts numerous parts of the immigration law which do not require employers to "hire American" before offering a job to a foreign citizen or sponsoring that person for a work visa in a variety of specific instances.

    Trump, obviously doesn't like those parts of the INA. For example, he has said that H-1B visas, which are mainly for the high-skilled professional foreign workers whom Trump hypocritically professes to favor by supporting the RAISE Act, should either be abolished or made subject to a Labor Certification requirement in every case.

    But if Trump doesn't like the H-1B visa in its present form, the way to change that is by going through Congress, not by issuing an executive order which directly contradicts the purpose of the H-1B law. This comment also applies to many other visas which, according to the law, do not require employers to give preference to American workers.

    Though Trump might not understand or like it, these laws cannot all just be simply abolished by presidential order.

    Robert Mugabe may once have had such powers in Zimbabwe. Donald Trump does not have this power in America.

    Roger Algase
    Attorney at Law
    Updated 11-17-2017 at 05:06 AM by ImmigrationLawBlogs
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