President Trump has issued an "Executive Order on Aligning Federal Contracting and Hiring Practices With the Interests of American Workers". The Executive Order ("EO") seeks to review the federal contracting and hiring practices in relation of use of foreign workers in the U.S. and abroad in government contracting and subcontracting.
EO lays the policy objective to create the opportunities for the United States workers to compete for the jobs including the jobs created through Federal contracts. [Section 1]
Section 2 requires for the review of federal contracting and hiring practices as the following:
(a) It requires 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 time-frames to implement such actions; and proposing any Presidential actions that may be appropriate.
Section 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)).
Attorney Niranjan Adhikari finds that the EO will have little significance in practical term because the Congress already prohibits most agencies from using appropriated funds to employ non-citizens in the continental United States according to Executive Order- 11935 by President Ford and the Treasury, Postal Service, and General Government Appropriations Act of 1996.
On the other hand the Immigration Nationality Act prohibits unfair immigration-related practices and the discrimination based on national origin or citizenship status. U.S. The Immigrant and Employee Rights Section (IER) within the U.S. Department of Justice enforces these anti-discrimination provisions of the Immigration and Nationality Act (INA) under 8 U.S.C. § 1324b.
Moreover, the the Executive Order failed to acknowledge the built-in protection for U.S. workers under current immigration regulations such as the following:
(a) the employer has to afford working conditions to its foreign employees on the same basis and in accordance with the same criteria as it affords to its U.S. worker employees who are similarly employed, and without adverse effect upon the working conditions of such U.S. worker employees;
(b) the foreign workers will not adversely affect the working conditions of workers similarly employed;
(c) foreign workers are not there are no strike, lockout, or work stoppage in the course of a labor dispute in the named occupation at the place of employment;
(d) Certain employers which are dependent on foreign workers are:
- prohibited from primary displacement of a U.S. worker in its own workforce;
- employers are prohibited from placing an nonimmigrant worker(s)
with another/secondary employer where there are indicia of an employment relationship between the nonimmigrant worker(s) and that other/secondary employer (thus possibly affecting the jobs of U.S. workers employed by that other employer); and
- employer must take good faith steps to recruit U.S. workers for the job(s) using procedures that meet industry-wide standards and offer compensation that is at least as great as the required wage to be paid to the nonimmigrant worker(s) . The employer must offer the job(s) to any U.S. worker who applies and is equally or better qualified for the job than the nonimmigrant worker.
(e) Certain specialized knowledge employees of a multinational corporations are not permitted to employ those foreign workers as "labor for hire" except it is not associated with the provision of a product or service for which specialized knowledge specific to the employer is necessary.
(f) More importantly, U.S. employer could prefer to hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is a foreign worker if the two individuals are equally qualified. Many employers could have hiring preference policy in compliance with unfair immigration-related practices and Title VII of Civil Rights Act of 1964.
There are number of agencies that administer the non-discrimination policy. For example, Equal Employment Opportunity Commission administers laws that prohibit discrimination in employment based on factors such as age, race, color, religion, sex, national origin, or disability, U.S. Department of Labor’s Office of Federal Contract Compliance Programs, which administers several laws prohibiting employment discrimination by certain federal contractors and federally assisted construction contractors and subcontractors on the basis of factors such as race, color, religion, sex, national origin, disability, and veteran status.
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice.
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