As an immigration lawyer in Houston, I keep track of the latest changes to immigration law. On April 18, 2017, President Trump signed an Executive Order entitled "Buy American, Hire American." Buy American means that all statutes, regulations, rules, and executive orders which relate to federal procurement or federal grants must show preference for goods, products, or materials produced in the United States. Products include steel, iron, and manufactured goods. For example, for steel products, the entire manufacturing process must be done in the United States.
How Does Buy American, Hire American Affect Immigrants?
The goal of this Executive Order (EO) is to promote economic growth, preserve national security, and create good jobs with competitive wages. The EO is aimed at strengthening the US middle class and supporting American manufacturing and defense industrial bases.
The stated purpose of the "Hire American" portion of the order is to "create higher wages and employment rates for workers in the United States, and to protect their economic interests." The Buy American, Hire American (BAHA) EO directs government agencies to rigorously enforce and administer the laws governing entry into the United States of foreign workers. One central focus is ensuring that H-1B visas are awarded only to the most-skilled or highest-paid petition beneficiaries.
When Buy American, Hire American (BAHA) was announced, all agencies (Department of Labor, Department of State, and Department of Homeland Security) were directed to review the H-1B program and suggest new reforms for it. The final goal is to eliminate the H1B Lottery and issue H1B visas only to highly skilled and highly paid workers, by changing the lottery to a point-based system.
Although there has been no new legislation passed by Congress regarding employment-related immigration matters, the impact of BAHA is already apparent due to changes made by U.S. Citizenship and Immigration Services (USCIS, which is part of the Department of Homeland Security) and the Department of State:
Increases in Requests for Evidence for H-1B Petitions
In the last year, we have seen a significant increase in Requests for Evidence (RFEs) from U.S. Citizenship and Immigration Services (USCIS). Based on data provided by USCIS, Reuters has concluded that between January 1 and August 31, 2017, the agency issued 85,000 RFEs on H-1B petitions, which corresponds to a 45 percent increase over the same period last year. The number of actual H-1B petition filings increased less than 3 percent during that same period.
Denials of Advance Parole Travel Documents
Beginning in July, USCIS began denying advance parole applications for individuals who are applying for green cards through adjustment of status who are in H-1B or L-1 status and traveled internationally prior to the issuance of the advance parole. Since the employees in these situations were permitted to travel on their valid H-1B/L-1 visas, the applications for permanent residence were not considered abandoned, however, USCIS determined that the travel constituted an abandonment of the advance parole application, therefore justifying a denial.
This is a change in USCIS’s handling of these applications and may create problems for individuals applying for adjustment of status whose visas expire while their applications to adjust status are still pending and who need to travel internationally.
Increased Scrutiny of Renewal and Extension Petitions
In October 2017, USCIS issued a memorandum directing immigration officers to review petitions to renew or extend work authorization (through H-1B, L-1 and other work visas) with the same scrutiny that it reviews initial petitions. In other words, no deference is given to prior approvals of petitions – a person who has been previously granted H-1B status and who remains in the same job with the same employer may be denied an extension of his H-1B status.
Prior USCIS policy was to review renewal and extension petitions for changes and differences in the employment arrangement, wages, and the individual’s eligibility. The new policy is to review each petition completely regardless of whether material changes have occurred. This has decreased the amount of security that employers have in knowing that foreign employees will be able to continue working.
Revisions to State Department Guidance on Visa Issuance
The State Department has made changes to the Foreign Affairs Manual’s guidance to consular officers regarding the issuance of nonimmigrant (temporary) work visas as well as employment-based immigrant visas, which are used by people becoming permanent residents based on an offer of employment in the United States. The Foreign Affairs Manual (FAM) notes on H, L, E, O and P temporary visas and employment-based immigrant visas have all been revised to note the BAHA EO and state that “The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that [applications for H, L, E, O and P visas] must be adjudicated.”
Thus, although the Buy American Hire American EO specifically singles out H-1B visas, the FAM has been amended to incorporate its principles into other temporary visa programs and into visa applications for individuals coming to the United States for long-term positions with US employers. This is despite the fact that there are no indications in the Immigration and Nationality Act that the purpose of some of these visa classifications was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests” or that an employer was required to protect the economic interests of US workers in pursuing these visas.
BAHA has meant higher scrutiny, more denials of visa petitions by USCIS, more refusals of visas at US Consulates, delays in visa issuance, and generally, more uncertainty about the likelihood of success for employers seeking to utilize the services of foreign workers. Employers of foreign workers and employees with US work visas need to be particularly cautious and thorough in their petition filings and visa applications to have the greatest chance of success.
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