New Trump Executive Order limits H-1B workers in federal contracting jobs

The Executive Order also targets outsourcing of federal work to foreign companies.

President Trump has issued a new Executive Order that will ban federal contractors from replacing U.S. citizens and Green Card holders with foreign workers and also outlaw offshoring of government work.

“We believe jobs must be offered to American workers first,” a statement on the White House website said. “It would be unfair for federal employers to replace perfectly qualified Americans with workers from other countries.”

The order said each federal department and agency will review “practicable, performance of contracts (including subcontracts) awarded by the agency in fiscal years 2018 and 2019” and assess whether they “used temporary foreign labor for contracts performed” in the U.S. If they did, “the nature of the work performed by temporary foreign labor on such contracts” will be assessed and determine “whether opportunities for United States workers were affected by such hiring; and any potential effects on the national security caused by such hiring.”

The White House said the Department of Labor “will also finalize guidance to prevent H-1B employers from moving H-1B workers to other employers’ job sites to displace Americans workers.”

Latest Trump executive order on H-1B, L-1 and J visas: who will be affected? (June 24, 2020)

Another focus of the new Executive Order is to prevent outsourcing of federal work. “This Executive Order will help prevent Federal agencies from unfairly replacing American workers with low-cost foreign labor,” the White House said.

The genesis of the new Executive Order is a move by the Tennessee Valley Authority, which is owned by the federal government, that it will outsource a fifth of its technology jobs to foreign companies.

TVA’s action is likely to eliminate more than 200 American jobs in Tennessee and cost the “local economy tens of millions of dollars over the next 5 years,” the White House said.

Here is the full text of the Executive Order:

Executive Order on Aligning Federal Contracting and Hiring Practices With the Interests of American Workers

Issued on: August 3, 2020

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1.  Policy.  It is the policy of the executive branch to create opportunities for United States workers to compete for jobs, including jobs created through Federal contracts.  These opportunities, particularly in regions where the Federal Government remains the largest employer, are especially critical during the economic dislocation caused by the 2019 novel coronavirus (COVID-19) pandemic.  When employers trade American jobs for temporary foreign labor, for example, it reduces opportunities for United States workers in a manner inconsistent with the role guest-worker programs are meant to play in the Nation’s economy.

Sec. 2.  Review of Contracting and Hiring Practices.  (a)  The head of each executive department and agency (agency) that enters into contracts shall review, to the extent practicable, performance of contracts (including subcontracts) awarded by the agency in fiscal years 2018 and 2019 to assess:

(i)   whether contractors (including subcontractors)  used temporary foreign labor for contracts performed in the United States, and, if so, the nature of the work performed by temporary foreign labor on such contracts; whether opportunities for United States workers were affected by such hiring; and any potential effects on the national security caused by such hiring; and

(ii)  whether contractors (including subcontractors)  performed in foreign countries services previously performed in the United States, and, if so, whether opportunities for United States workers were affected by such offshoring; whether affected United States workers were eligible for assistance under the Trade Adjustment Assistance program authorized by the Trade Act of 1974; and any potential effects on the national security caused by such offshoring.

(b)  The head of each agency that enters into contracts shall assess any negative impact of contractors’ and subcontractors’ temporary foreign labor hiring practices or offshoring practices on the economy and efficiency of Federal procurement and on the national security, and propose action, if necessary and as appropriate and consistent with applicable law, to improve the economy and efficiency of Federal procurement and protect the national security.

(c)  The head of each agency shall, in coordination with the Director of the Office of Personnel Management, review the employment policies of the agency to assess the agency’s compliance with Executive Order 11935 of September 2, 1976 (Citizenship Requirements for Federal Employment), and section 704 of the Consolidated Appropriations Act, 2020, Public Law 116-93.

(d)  Within 120 days of the date of this order, the head of each agency shall submit a report to the Director of the Office of Management and Budget summarizing the results of the reviews required by subsections (a) through (c) of this section; recommending, if necessary, corrective actions that may be taken by the agency and timeframes to implement such actions; and proposing any Presidential actions that may be appropriate.

Sec. 3.  Measures to Prevent Adverse Effects on United States Workers.  Within 45 days of the date of this order, the Secretaries of Labor and Homeland Security shall 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(n)

(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)).

Sec. 4.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,

August 3, 2020.

 

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