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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”

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.

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.

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.

Over the last four years the U.S. immigration policy has been through many drastic changes. The Trump Administration from the beginning promised significant reforms with an overarching theme of one its seminal Executive Orders of 2017 – Buy American Hire American.

Business immigration practitioners and employers that rely on their guidance have experienced significant upheavals in the way non-immigrant and immigrant visa processes are administered. There has been a sea of changes driven by proposed legislation to focus on Merit-Based Immigration to Executive Actions rolling back current programs and policies to protect the U.S. economy and U.S. workers, especially during a pandemic.

What would a new Administration led by Joe Biden and Kamala Harris do to change the current state of play?

Experience with the Obama/Biden Administration and a review of the stated immigration plans of the Biden/Harris campaign indicate that we might see the following:

Executive Actions

  • Reversal of Travel Ban Proclamations banning entry from those present in the Schengen area, U.K., Ireland, Brazil, Iran, and China
  • Reversal of the Ban on the Issuance of Immigrant Visas and Non-immigrant L-1 and H-1 Visas
  • Reversal of the Ban on Certain Students from China
  • Reinstatement of the DACA Program
  • New TPS Designations
  • Review of Interim Final and Proposed Rules impacting the H-1B and PERM programs
  • Withdrawal of Guidance Memorandums on Respecting Precedent in Adjudication of USCIS cases
  • Review of F-1 and J-1 proposed rules on Duration of Status
  • Additional Funding for USCIS/DOL/DHS
  • EB-5 Reform – Nullifying the EB-5 Rule and pushing for legislative reform
  • Withdrawal of Public Charge Attestations from those seeking certain Immigration Benefits

Litigation

  • In-depth review of current cases challenging immigration rules and the position of DHS/USCIS/DOJ

Legislation

  • Attempts to Pass HR 6 providing relief to DACA and TPS beneficiaries
  • A push to pass the Elimination of Per Country Quotas – The Fairness in High Skilled Immigration Act
  • Comprehensive Immigration Reform to include Reform of the NIV and IV Systems
  • EB-5 Reform – Nullifying the EB-5 Rule and pushing for legislative reform

While Inauguration Day isn’t until Jan. 20, 2021, and there is a lot to be sorted out between now and then, it is safe to say that a Biden Harris Administration would handle business immigration policy in a dramatically different way.

In support of its efforts to combat H-1B fraud and consistent with President Trump’s Buy American Hire American initiative, the U.S. Citizenship and Immigration Services (USCIS) will now require employers sponsoring H-1B workers at third-party worksites to include additional information and documentation in their H-1B filings. The new policy memorandum “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites“, effective Feb. 22, 2018, largely formalizes existing USCIS policy on H-1B petitions involving third-party worksites, but also spells out new requirements regarding end-client letters and itineraries.

USCIS indicates that this new memo is a continuation of USCIS’s previous policy memo on third-party worksite H-1B petitions from Jan. 8, 2010, “Determining the Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” (also known as the Employer-Employee Memo) and that employers should provide the additional documentation and information described in the memo in order to show by a preponderance of the evidence that (1) the H-1B worker will be employed in a specialty occupation; and (2) the employer will maintain an employer-employee relationship with the H-1B worker for the duration of the requested employment period.  In short, the employer must establish that it has “specific and non-speculative qualifying assignments in a specialty occupation for the [employee] for the entire time requested on the petition.”

Companies that sponsor H-1B employees working at third-party worksites will recognize much of the additional evidence described in this memo as USCIS routinely requests these documents in Requests for Evidence.  To prove that the H-1B worker at a third-party worksite will be employed in a specialty occupation and that the employer-employee relationship exists, the memo says that employers should submit contracts and work orders, work product, and contractual agreements related to the H-1B employee’s placement.  While an end-client letter is not a new requirement, the memo specifies that the end-client letter should include a detailed description of the H-1B employee’s job duties, the job requirements, the duration of the job, the salary, hours worked, benefits, and information about who will supervise the H-1B employee. It is sometimes difficult for H-1B employers to obtain end-client letters and requiring so much information in a letter will make the process more difficult. It is also unclear why an end-client would have detailed information about an H-1B employee’s employment since the end-client is not the employer. Requiring an end-client to provide this information about an H-1B visa holder providing services at its facility also raises concerns about joint employment.

Similarly, USCIS often requests itineraries in Requests for Evidence issued on third-party worksite H-1B petitions. The memo confirms the itinerary is a regulatory requirements and that employers must provide detailed itineraries for each worksite listed in the petition or the petition will be denied.

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.

The second Trump administration has moved quickly to implement its campaign promises on immigration, issuing a series of executive orders aimed at tightening border security, curbing illegal immigration, and enhancing interior enforcement. Florida Gov. Ron DeSantis has announced complementary legislative proposals for his state, positioning Florida as a key player in supporting these federal efforts.

Highlights of the New Executive Orders

  1. National Emergency Declaration at the Southern Border

President Trump declared a national emergency to mobilize the U.S. military, expedite border wall construction, and bolster surveillance through drones and advanced technology. This measure aims to deter illegal crossings and improve border integrity.

  1. Designation of Drug Cartels as Foreign Terrorist Organizations

The administration has classified drug cartels as “foreign terrorist organizations.” This designation will facilitate more robust measures against their operations and may influence broader immigration enforcement actions.

  1. End of Humanitarian Parole Programs

The administration continues to affirm plans to terminate programs that had provided legal pathways for migrants from countries like Cuba, Haiti, Nicaragua, and Venezuela, as well as similar programs for Afghans, Ukrainians, and other groups. This signals a shift away from temporary humanitarian admissions and toward stricter immigration controls.

  1. Changes to Asylum and Refugee Policies

The executive orders aim to end “catch and release” practices and significantly restrict asylum rights, reducing the ability of migrants to seek protection upon arrival. These measures may face legal challenges claiming they are inconsistent with existing U.S. and international law.

Additionally, the administration intends to suspend the refugee resettlement program for four months. The refugee resettlement program has, for several decades, allowed hundreds of thousands of people fleeing war and persecution to come to the United States. President Trump similarly suspended the refugee program at the beginning of his first term, and, after reinstating it, significantly reduced the number of refugees admitted annually.

  1. Enhanced Interior Enforcement

Key actions include reinstating the “Remain in Mexico” policy, expanding the 287(g) program—which deputizes state and local officials as federal immigration enforcement agents—and issuing financial penalties to sanctuary cities that do not cooperate with federal immigration authorities. Both actions reflect the Trump administration’s campaign promise to crack down on illegal immigration and carry out mass deportations.

  1. End Birthright Citizenship

One of the key announcements is the effort to end birthright citizenship—one of President Trump’s most ambitious immigration efforts. Birthright citizenship ensures that anyone born in the United States automatically becomes an American citizen. Trump’s effort to end it is expected to face legal challenges.

  1. Reaffirming the 2017 ‘Buy American and Hire American’ Executive Order in the America First Trade Policy

During the first Trump Administration the government was directed to focus on ensuring that policies favored domestic workers. This has ramifications in business immigration policy and workplace enforcement.

Florida’s Role in Supporting Federal Immigration Goals

Gov. DeSantis has proposed legislation designed to align Florida’s state policies with the Trump administration’s federal immigration priorities. These include:

  • Maximum Participation in the 287(g) Program: Florida will mandate compliance from local officials, imposing penalties for non-compliance.
  • State Crime for Illegal Entry: The legislation creates a state offense for illegal entry, coupled with a self-deportation mechanism.
  • Unauthorized Alien Transport Program (UATP): Expansion of this program will facilitate the detention and deportation of unauthorized individuals.
  • Repeal of In-State Tuition for Undocumented Students: This move underscores a stricter approach to benefits extended to unauthorized residents.
  • Voter Registration Reforms: Measures will ensure identity verification and impose severe penalties for voter fraud.
  • Restrictions on Financial Transfers: New rules will require identity verification for foreign remittance transfers, aiming to reduce potential misuse.

Implications and Challenges

These sweeping changes represent a hardline stance on immigration and signal a shift toward aggressive enforcement measures. However, these policies are expected to face legal and logistical challenges:

  • Legal Challenges: Immigration and civil rights organizations are likely to challenge the restrictions on asylum, the national emergency declaration, and other measures.
  • Operational Coordination: Effective implementation of expanded 287(g) programs and deportation initiatives will require coordination between federal, state, and local agencies.

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.