Trump's Executive Order Targeting the H-1B Visa Program Is Pure Theater

He is baiting opponents to sue him.


Donald Trump was back in campaign mode yesterday doing what he does best: Beat up on immigrants. But this time he didn't go after low-skilled undocumented workers. He trained

Trump Mouth
Todd Krainin

his fire on high-skilled foreigners on H-1B visas.

He travelled to the headquarters of Snap-On Inc, a tool manufacturer in Kenosha, Wisconsin, and announced that he was signing a "Buy American, Hire American" executive order to stop companies from using this program to replace high-skilled Americans with cheaper foreign workers. "Right now, widespread abuse in our immigration system is allowing American workers of all backgrounds to be replaced by workers brought in from other countries," Trump harrumphed.

This is complete and utter nonsense. There is no evidence that "widespread abuse" of the program exists much less that it is hurting American workers. Indeed, as I recently wrote, unemployment among Americans with advanced STEM degrees is about 3 percent and in certain specialized professions such as computer network architecture near 1 percent. In other words, fullest of full employment! Typically, STEM jobs go unfilled for several weeks longer than non-STEM jobs, suggesting a tight market for talent in those fields. Furthermore, H-1Bs are not "cheap" – they are paid almost $5,000 more than natives with bachelor's degrees in the same occupation.

Snap-On CEO Nick Pinchuk even complained to Trump about how hard it is for his company, which manufactures high-end diagnostic tools for the transportation industry, to find "workers with the necessary training for the high-tech work," according to a White House travel pool report.

But instead of reassuring him, Trump joked that he would take a "sledgehammer" to the H-1B visa program, one of the few avenues that folks like Pinchuk have to meet their labor needs. Trump declared that he would end the "random lottery" that is used to allocate the 85,000 H-1B visas handed out every year and replace it with a "merit-based" system that ensures that the visas go to the most skilled, best-paid immigrant workers. (This lottery, which draws twice more applications than the slots available, gets filled within few weeks of opening every year, leaving the unlucky employers cooling their heels for another year.) By this he presumably means that he wants to prioritize these visas for foreign techies with advanced degrees commanding higher wages.

Trump has ordered a review of the program. Regardless of what the review shows, the fact of the matter is that he can't implement radical reforms via executive order. Indeed, Theresa Brown of the Bipartisan Policy Center points out that the 85,000 H-1B cap and its method of allocation is set by statute. The 1965 Immigration and Nationalization Act expressly says: "the numerical limitations [pertaining to H-1B] shall be issued visas (or otherwise provided nonimmigrants status) in the order in which petitions are filed for such visas or status."

This means that Trump will need Congressional action to reform the program. And, indeed, there are a couple of bipartisan bills already in the works that want to make such reforms.

So why is Trump going it alone instead of working with Congress? After all, any executive action that messes with the existing system will be sued before it makes it through the door. One would have thought that the travel ban debacle would give him some pause.The only plausible explanation is that he is baiting opponents and wants litigation so that he can look like the hero valiantly trying to champion the cause of American workers.

It's a cynical strategy that isn't likely to accomplish much. And he wouldn't be the first president to play politics with this issue. His predecessor's games doomed immigration reform.

The tragedy, however, is that Trump has totally changed the conversation on immigration from where it needs to be. So far there was a consensus that whatever the case with low-skilled immigrants, America needed more—not fewer—foreign techies. After all, almost every other IT startup in Silicon Valley has an immigrant founder. Immigrant smarts have spun IT gold out of sand and made America the global high-tech leader. Now, scaring them away with tough talk is apparently the recipe for making America Great Again.