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Regulatory

TRUMP ADMINISTRATION THREATENS

THE FUTURE OF THE J-1 VISA PROGRAM

BY DAVE BYRD, NSAA DIRECTOR OF RISK & REGULATORY AFFAIRS

IN APRIL, PRESIDENT TRUMP issued one of his seemingly the White House indicated that the administration was
unending executive orders titled “Buy American and Hire on the verge of releasing a new executive order that would
American,” known commonly as BAHA. The executive either entirely eliminate the J-1 visa program or reduce the
order—which does not have the same legal force as a statute number of available visas by 90 percent. And it remains an
enacted by Congress—stated that “it shall be the policy of imminent threat: Although the J-1 program was created by
the executive branch to rigorously enforce and administer Congress as a cultural exchange and work visa program, the
the laws governing entry into the United State of workers 14 different visa categories under the J-1 umbrella (including
from abroad.” the SWT program, which ski areas use), were ultimately
Specifically, Trump’s four-page BAHA order required added by executive order. As a result, the White House likely
federal agencies to “propose new rules and issue new has some degree of legal latitude to also eliminate some of
guidance to supersede or revise previous rules and guidance these programs, without consulting Congress or seeking
. . . to protect the interest of US workers in the administra- public comment. To be sure, if Trump sought to exercise
tion of our immigration system,” referencing the various this arguable authority, the coalition of J-1 visa stakeholders
immigration work visa programs utilized by employers. The would likely sue the White House to prevent the elimination
BAHA order explicitly singled out the controversial H-1B or large reduction in the visa program.
visa program, which is often used by Silicon Valley to import Trump, along with Stephen Miller and Attorney General
foreign tech workers due to labor shortages, and has been Jeff Sessions, falsely claim that foreign worker visa programs
subject to significant media attacks for replacing American take jobs away from Americans. But the J-1 visa program
workers with cheaper foreign technology workers. is far, far different from the controversial H-1B program—
But Trump’s BAHA order also raised serious concerns students under the J-1 visa summer work travel program
from other businesses utilizing foreign worker programs, are temporary (four months), unskilled, and seasonal (these
including the J-1 visa Summer Work Travel (SWT) program, positions align with foreign students’ semester break periods).
which is far less controversial than the problematic H-1B visa For a variety of reasons, Americans are far less interested in
program. Still, as a candidate, Trump campaigned relent- this type of seasonal work, especially in rural areas. While
lessly with anti-immigration bombast, repeatedly promising employers want to hire locally, in reality, there are few
to eliminate (or dramatically reduce) the J-1 visa program, Americans interested in unskilled, seasonal jobs. More impor-
advocating its replacement with a program targeting inner- tantly, stark low-unemployment rates underscore the critical
city youth employment as a source of labor for seasonal need for immigrant work visa programs.
businesses. The irony in Trump’s dog-whistle rhetoric is that With this looming threat from the White House, NSAA
his own hotels, casinos, and real-estate properties signifi- and other J-1 visa stakeholders took the battle to Congress
cantly utilize the J-1 and H-2B visa programs, including to prevent Trump and his White House anti-immigration
his “Southern White House” at Mar-a-Lago Golf Resort hardliner, Miller, from unilaterally eliminating foreign
in Florida. worker visa programs. A coalition of employers—including
Trump’s BAHA order requires agencies—including the the ski industry, hospitality groups, national park conces-
State Department, which oversees the J-1 visa program—“to sionaires, summer resorts, restaurants and hotels, convention
propose new rules and issue new guidance to protect the visitor bureaus, and summer camps—organized over the
interest of workers in the United States,” under a timeframe summer to directly counter the false claims that J-1 students
“as soon as practicable.” However, in August, leaks from take jobs from Americans. Moreover, this coalition reached

8 | NSAA JOURNAL | EARLY WINTER 2017