The Administration Reverses Foundational Trump Executive Order Affecting Immigration
Dallas, TX (Law Firm Newswire) June 21, 2021 – The Biden Administration took recent executive action to reverse the foundational Trump immigration policy contained in the “Buy American and Hire American” Executive Order, signed early on in that Administration.
On January 25, 2021, President Biden signed an Executive Order which effectively revoked President Trump’s Buy American and Hire American (BAHA) Executive Order. BAHA — put in place on April 18, 2017, by former President Trump — laid the groundwork for many restrictive immigration policies that followed. Its purported goal was to increase wages and employment rates for U.S. workers by directing various federal agencies to promulgate rules which would erect barriers to foreign nationals seeking immigration benefits from the U.S. immigration system. The impact of BAHA was consistent with the anti-immigrant sentiment of the prior Administration.
“Immigrant bashing and nativist thinking are simply bad policy. Bad for civil discourse, and bad on the merits,” said Stewart Rabinowitz of the Dallas and Frisco law firm of Rabinowitz & Rabinowitz, P.C. “We are hopeful that the Biden Administration will implement reasonable policies going forward that will recognize the value of immigrants and immigration to our country — not just historically, but the value today in areas such as high tech, and in diverse fields including construction and agriculture, where there are shortages.”
The barriers that arose from BAHA have rippled throughout the Department of Homeland Security’s United States Citizenship and Immigration Services (USCIS) and in other federal agencies. From April 18, 2017, onward, during the balance of the Trump Administration, USCIS took a series of steps in compliance with this policy. It reversed deference to prior agency approvals when a petitioning employer sought an extension for a foreign worker, thereby making the employer go to the effort and expense of proving again what USCIS had previously approved.
USCIS issued a memorandum affecting employers of H-1B workers who were placed at third-party worksites, placing onerous requirements on such employers to prove the exact need for the H-1B worker, the duration of that need, the details of the precise work assignment, and information about how the employer would control the work of that worker. USCIS undertook to ramp up its site visits to employers who have filed H-1B or L-1 petitions as part of its efforts to root out and prevent fraud. And USCIS began a dramatic increase in issuing complex Requests for Evidence before deciding most benefits cases, effectively raising the burden of proof from a preponderance of the evidence to something between clear and convincing evidence to beyond a reasonable doubt, to name a few.
The Biden Administration is poised to reverse not just these policies but to address the long-standing need for comprehensive immigration reform. Reform legislation would address the national manpower shortages to be filled by foreign nationals, the large population of persons here without status, and the country’s need to control its borders effectively. Rescinding BAHA and its progeny is the first step.