Search results for: Buy American, Hire American

Since the introduction of the Executive Order “Buy American, Hire American” (BAHA), federal agencies, including DHS and USCIS, are following the directive to focus on protecting U.S. workers and U.S. resources.  The USCIS website was updated as of Dec. 20, 2017 regarding BAHA and below are key highlights from this update, which is essentially a recap of all USCIS’ activity this year under the BAHA directive:

  1. USCIS is taking direction from its July 26, 2017, stakeholder call to make some changes. During the call, individuals expressed the need to continue improving the integrity of the immigration system to protect both U.S. workers and foreign workers.
  2. E-Verify:  USCIS stresses that E-Verify is strongly encouraged for all employers
  3. Reporting Fraud:  USCIS reiterates resources and programs for the public to report fraud-designated email addresses specifically for H-1B and H-2B fraud.  USCIS will also enhance their site visit programs, and will specifically focus on employers who petition for L-1B employees working at a third party worksite.  Lastly, USCIS will be enhancing information sharing with the Department of State, Department of Labor, and Department of Justice to improve the immigration system and combat fraud.
  4. H-1B data:  As we have seen recently, USCIS has been publishing reports on the H-1B visa, including types of workers, trends, and approval/denial rates.  EAD reports have also been issued.
  5. Lastly, USCIS summarizes policy memorandum that have been issued this year.  These include:
    1. Memo on how to classify TN nonimmigrant Economists under NAFTA.
    2. Memo that all nonimmigrant petitions, including H-1B, will be adjudicated as new and deference will not be given for extensions.
    3. Memo on the definition of “affiliate” or “subsidiary” for determining the ACWIA fee- this fee is important as it pays for U.S. workers to attend job training and receive low-income scholarships.

GT will continue to monitor any updates from USCIS as well as any activity resulting from BAHA.

For more information on USCIS activities, click here.

For over a decade, filing an extension of nonimmigrant status in visa categories such as the H-1B was a fairly routine process for cases involving the same employer and same underlying facts.  This changed yesterday. As part of the Trump Administration’s Buy American, Hire American: Putting American Workers First initiative, USCIS rescinded a long-standing policy from 2004, The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity; and Part VII (Readjudication of L-1B Status) of L-1B Adjudications Policy from 2015, and issued new policy guidance entitled Recission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status.  This new guidance instructs USCIS officers to no longer give deference to prior determinations of eligibility for extensions of nonimmigrant status that include the same parties and underlying facts and shifts the burden of proof back to the Petitioner/Employer.  This new guidance will impact extensions of nonimmigrant status that use the I-129 Form and will likely result in the issuance of more Request for Evidence (RFE) notifications.  Employers who were already experiencing heightened scrutiny and hurdles in the H-1B program over recent months, including the systematic issuance of Wage Level 1 RFEs, will now see an even higher percentage of RFE notifications.  We will continue to monitor and report on review trends that result from this guidance.

For more information on H-1B visas, please click here.

*Not admitted to the practice of law.

Update on USCIS Efforts to comply with “Buy American and Hire American”

On April 4, 2018, the Director of USCIS, Lee Francis Cissna, penned a letter to Chairman Grassley to update him on USCIS’ efforts to comply with the April 2017 Executive Order, “Buy American, Hire American.”  The contents of the letter are broken into three parts:  1) Current action items for USCIS; 2) Past items; and 3) Proposed future items to address. Below are the pending changes, proposed changes, and made changes that have occurred since the Executive Order:

Continue Reading Update on USCIS Efforts to comply with “Buy American and Hire American”

On April 18, 2017, President Donald Trump signed an Executive Order (EO) titled “Buy American and Hire American.” The stated purpose of this EO is to protect the American economy by having the U.S. government and agencies focus on purchasing goods made in America, and to also protect American workers. The first part of the EO includes text that focuses on conducting studies and putting forth plans for federal agencies to immediately maximize the use and procurement of materials and products made in the United States—or “Buy American.”

The second part of the EO includes text that focuses on “Hire American,” that is, reviewing current U.S. immigration laws, specifically as they relate to nonimmigrant visa categories. A summary of the second part of the EO is below:

Ensuring the Integrity of the Immigration System in Order to “Hire American”:

  • The Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security are tasked with proposing new rules and issuing new guidance with the intent of protecting U.S. workers and eliminating fraud or abuse.
  • In addition, the text of the EO directs that reforms should be focused on ensuring that H-1B status is only granted to those who are the “most-skilled” or the “highest-paid.”

This EO comes only a few weeks after various U.S. federal agencies tasked with administering immigration law issued guidance and decisions with the intent of preventing fraud and abuse in the immigration system, specifically the H-1B program. The United States Citizenship and Immigration Service, the Department of Justice, and the Department of Labor all released statements and/or policy with regard to the H-1B program.  To see a summary regarding these statements and/or policies, please visit our previous post.

As this EO is general in nature and does not dictate any specific timelines for the “Hire American” portion, Greenberg Traurig will continue to monitor the conditions and changes. To receive updates, please subscribe to our blog.

Navigating the Future of H-1B, L-1 and O-1 Visas

As the new Trump administration takes shape, tech companies and foreign workers are keenly observing potential changes to the H-1B visa program and other related tech visas. The administration is expected to appease its opposing stakeholders by maintaining strong relationships with the tech industry while also addressing concerns from those advocating for stricter immigration policies.

H-1B and L-1 Visas: A Balancing Act

While some factions within the administration may push for a reduction in high-skilled immigration, the administration’s close ties with tech companies suggests it will likely maintain current levels of H-1B and L-1 visa issuances. The tech industry heavily relies on these visas, and any drastic reduction could disrupt business operations and innovation. However, procedural changes that we saw in the previous administration, as well as new ones, might be introduced to indirectly limit access, such as increased scrutiny during adjudications, slower processing times, increased requests for evidence, higher denial rates, and more frequent site visits.

A particular focus is expected on third-party placement firms and staffing companies, which have been accused of misusing the H-1B program. Companies that are in the outsourcing/staffing industry may face heightened scrutiny and additional requirements, especially in terms of documenting third-party worksite placements.

Buy American, Hire American: Implications and Expectations

The anticipated “Buy American, Hire American” executive order could lead to reviews of companies using large numbers of H-1B visas to determine if they are prioritizing foreign workers over U.S. citizens. This may also involve increased activity from the Department of Justice’s Immigrant and Employee Rights Section (IER), which scrutinizes whether foreign nationals are being unfairly preferred in hiring.

Geopolitical Considerations and Security Checks

The administration might impose stricter limitations on H-1B visa holders from countries perceived as unfriendly, such as China and those countries that have been designated as state sponsors of terrorism. Enhanced security and administrative checks could lead to delays for nationals from these countries, reflecting broader geopolitical concerns. The administration could also bring back its Travel Bans via executive orders, as it did previously.

Potential Revisions to Existing Policies

There is speculation about reversing USCIS’s deference policy, which has allowed USCIS adjudicators to rely on prior approvals involving the same parties and facts rather that adjudicating every visa petition from scratch. While the recent H-1B modernization rule codifies the deference policy, the administration could issue directives requiring case-by-case reviews, potentially complicating and slowing the process for employers and applicants.

Additionally, work authorization for some spouses of tech workers may disappear. The Trump administration proposed eliminating the H-4 EAD in 2021 and it may try to do this again. There have been no similar attempts at, or discussions around, rescinding L-2 work authorization.

Optional Practical Training (OPT) and STEM OPT

Previous attempts by the Trump administration to limit OPT and STEM OPT were met with resistance from the tech industry and educational institutions. Further restrictions on these programs seem unlikely in the short term because any changes would likely face significant pushback due to their importance to tech companies and universities.

Prevailing Wage and Union Advocacy

Efforts to increase prevailing wages for H-1B workers may gain traction, with heightened scrutiny on companies accused of undercutting wages through foreign hires. The incoming head of the Department of Labor could advocate for policies that favor higher prevailing wages and address union concerns.

Conclusion: Navigating Uncertainty

While the new administration may introduce challenges for high-skilled immigration, the business community’s pushback and the economic benefits of these programs could help prevent implementation of any drastic measures. Companies and foreign workers should stay informed and prepare for potential procedural changes.

The H-1B program is undergoing even more scrutiny under the current White House administration. Under the “Buy American, Hire American” Executive Order, the goal is for companies to hire only the best and the brightest for visa sponsorship, mostly H-1B visa holders. The Department of Labor (DOL), the governmental agency that handles the public disclosure information for employers looking to sponsor H-1B employees, has always released information for Labor Condition Applications (LCAs) in conjunction with the H-1B petition. The LCA has traditionally disclosed information including employer name, address, salary wage range, and worksite location, among other attestations the employer must make to meet labor and immigration laws. In November 2018, the DOL changed the format of the LCA to include those employers that place employees at a third-party client site, many of which petition for their own H-1B workers. See our November 2018 blog post here. Continue Reading Department of Labor Adds More to Disclosure Data to Include End Client Information

Law360 recently published an article by Rebecca B. Schechter and Courtney B. Noce titled, “The New Normal For Business Immigration in 2018.” The article discusses the year ahead and what employers can expect in terms of immigration. Schechter and Noce provide insights on “Buy American, Hire American” (BAHA), including increased scrutiny and stricter requirements. Additionally, the authors address the disappearance of non-merit-based temporary work authorizations as well as compliance issues facing employers. To read the entire article, please click here.

USCIS announced today that it will resume its premium processing service for all H-1B petitions that are subject to this year’s H-1B cap.  This news provides much needed relief to employers and foreign nationals, particularly in those situations where an employee is relying on F-1 optional practical training (OPT) cap gap provisions for work authorization. F-1 OPT cap gap work authorization will expire on Sept. 30, 2017, leaving foreign nationals unable to work unless their H-1B petition is approved before Oct. 1, 2017, or they are able to secure alternative work authorization, which is unlikely for most.

Continue Reading USCIS to Resume H-1B Premium Processing for Petitions Filed under FY2018 Cap

The E-2 visa has long been a popular option for entrepreneurs, investors, and employees seeking to live and work in the United States by investing in or working for a qualifying U.S. business. Historically, the U.S. Embassy in London has been a predictable and efficient post for processing E-2 visas, with interviews typically lasting only a few minutes and focusing on a cursory review of the application. However, recent developments have introduced significant changes to the process, requiring applicants to approach their interviews with greater preparation and awareness.

Key Changes in E-2 Visa Processing at the U.S. Embassy London

Over the past year, applicants and immigration practitioners have reported notable shifts in the E-2 visa interview process at the U.S. Embassy in London. These changes include longer interviews, more in-depth questioning, and an increase in unexpected refusals under INA 214(b). To address these concerns, representatives from the American Immigration Lawyers Association (AILA) engaged in discussions with consular leadership at the embassy. While consular officials confirmed that no changes have been made to the laws, regulations, or policy guidance governing E-2 visas, they did provide insights into procedural adjustments that may impact applicants.

1. Interview Environment

E-2 visa interviews are now conducted on a separate floor from other nonimmigrant visa classifications. Applicants are grouped with individuals undergoing Visa Control Unit interviews, which typically involve cases with potential criminal or inadmissibility issues. This setup offers limited privacy, which may add to the stress of the interview process.

2. Rotating Pool of Consular Officers

Unlike in the past, there is no dedicated E visa officer at the U.S. Embassy in London. Instead, interviews are conducted by a rotating pool of 14 consular officers, with two officers assigned to review E visa applications each day. This lack of specialization may lead to inconsistent adjudications, as officers may vary in their familiarity with E-2 visa requirements and nuances.

3. Longer and More Detailed Interviews

Interviews for E-2 corporate registrations and individual applicants are now lasting up to 30 minutes, compared to the brief interviews of the past. Applicants should be prepared to answer detailed questions about their business operations, financials, and role within the company. Examples of questions for corporate registrations include:

  • What is your U.K./U.S. revenue this year and last year?
  • Can you explain your business plan?
  • What were your start-up expenses, and what is their price/value?

For individual applicants, questions may focus on:

  • Why is your company expanding or operating in the United States?
  • Why are you being sent to the United States, and why can’t your U.S. colleagues cover your role?
  • Is your U.S. company profitable?
  • Will you be seeking a green card eventually?
  • Are you aware that an E-2 visa does not provide a pathway to a green card?

4. Increased Scrutiny

Applicants with limited business experience or those unable to provide detailed answers may face heightened scrutiny. Additionally, the embassy appears to be applying the “Buy American Hire American” (BAHA) lens, which asks applicants to justify why an American worker cannot perform their proposed U.S. job duties. This aligns with the broader “America First Policy Directive” that prioritizes U.S. workers and businesses.

Implications for Applicants

The procedural changes at the U.S. Embassy in London have implications for E-2 visa applicants:

  • Thorough Preparation is Essential: Applicants must be ready to discuss their business operations, financials, and role in detail. This includes having a clear understanding of their business plan, start-up expenses, and the rationale for their presence in the United States.
  • Risk of Refusal: Unexpected refusals under INA 214(b) have become more common. A refusal may also impact an applicant’s eligibility to visit the United States under the Visa Waiver Program (ESTA), further complicating future travel plans.
  • Inconsistent Adjudications: The rotating pool of consular officers may lead to variability in interview experiences and outcomes. Applicants should be prepared for a range of questions and approaches.

Key Considerations

Given the evolving landscape of E-2 visa processing in London, applicants should consider taking the following steps to maximize their chances of approval:

  1. Work with Experienced Counsel: Consulting with an experienced immigration attorney can help ensure applications are complete, accurate, and tailored to address potential concerns.
  2. Prepare for In-Depth Questions: Practice answering detailed questions about business operations, financials, and role within the company. Applicants should be ready to articulate why their presence in the United States is essential.
  3. Document Everything: Provide clear and organized documentation to support an application, including financial statements, business plans, and evidence of the applicant’s qualifications.
  4. Understand the Limitations of the E-2 Visa: Be aware that the E-2 visa does not provide a direct pathway to permanent residency (a green card). Applicants should be prepared to address this if asked during their interview.

Conclusion

The U.S. Embassy in London has introduced changes to its E-2 visa interview process, making it more rigorous and unpredictable than in the past. Applicants should consider approaching their interviews with thorough preparation, a clear understanding of their business and role, and a willingness to address detailed questions. By staying informed and working with experienced professionals, applicants can navigate these challenges and increase their chances of a successful outcome.

Immediately after assuming office on Jan. 20, 2025, President Donald Trump began issuing numerous executive orders. While they may not immediately impact business immigration, many of them presage changes in the business immigration landscape. The following is an analysis of several of these executive orders from that perspective:

  • Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats. This executive order largely reiterates Trump’s Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, an executive order from his previous term. It tasks various government agencies with reviewing all visa programs to prevent foreign nation-states or other hostile actors from hurting the United States. This order will most likely result in an increase in scrutiny of visa applications and an increase in processing times across the board for all business immigration. We can expect an increase in the number of visa applications subject to administrative processing. These effects may discourage business immigration as business realities clash with system slowdowns.
  • America First Trade Policy. This executive order largely reiterates Trump’s Executive Order 13788, Buy American and Hire American (BAHA), from his previous term. The U.S. Trade Representative has been directed to review the implementation of trade agreements to ensure they favor domestic workers and manufacturers, consistent with the principles of that prior executive order. This may lead to a tightening of the labor market, as companies could be discouraged from hiring available foreign national candidates for positions. This could lead to an immigrant brain-drain as highly skilled immigrants trained at U.S. universities and institutions potentially immigrate to countries such as Canada. The USTR’s review may also affect treaty-based visas, such as the TN, E-1, E-2, and H-1B1 visas. Trump also issued America First Policy Directive to the Secretary of State, which may result in increased scrutiny of employment-based visa applications, as BAHA did under Trump’s previous term.
  • Guaranteeing the States Protection Against Invasion. This executive order characterizes migration at the southern border as an “invasion” and imposes vetting requirements on those immigrating to the United States. The likely impact is to create enhanced medical and security requirements for immigrants entering the U.S. While this executive order is drafted with the southern border in focus, Customs and Border Protection and the Department of Homeland Security will likely impose additional restrictions on business immigration as well, potentially creating travel disruptions due to inconsistent experiences at points of entry.
  • Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists. The designation of criminal organizations in the United States and Central America may portend a crackdown on and enhanced vetting of immigrants, including business immigrants, from areas where these organizations operate. This could cause slowdowns in business immigration across the southern border with Mexico.
  • Protecting the American People Against Invasion. This executive order expands expedited removal and revokes humanitarian parole programs created by the prior administration. Individuals who have secured status under those programs will be unable to renew work permits. It may also result in the return of “public charge” policies, which previously resulted in a slowdown for business immigrants seeking lawful permanent residency status. Furthermore, increased scrutiny and interior enforcement may lead businesses to forego hiring immigrant workers.
  • Protecting the Meaning and Value of American Citizenship. This executive order seeks to re-interpret the Constitution’s guarantee of citizenship for those born within the United States territory and who are subject to the jurisdiction of the United States. Notably, this executive order attempts to remove the grant of citizenship to certain business immigrants’ children born in the United States. Lawsuits have been filed challenging the impact of this executive order. This action may lead to increased difficulties for companies in recruiting and retaining foreign workers.

Conclusion

While these orders do not have an immediate impact on business immigration, they will likely cause an increase in administrative costs for companies with foreign workers and create retention challenges for companies. This may lead to an immigrant brain-drain, as highly skilled professionals, some of whom have been trained and educated in the United States, potentially seek to leave the country.