The Buy American and Hire American (BAHA) policy, in Executive Order No. 13877, issued by President Trump on April 14, 2017, mandated that the Department of State (DOS), Department of Justice (DOJ), Department of Labor (DOL) and Department of Homeland Security (DHS), all issue new rules to “protect the interests of United States workers”. These vague guidelines did not take account of the fact that protection of US workers was already written into the statute and the regulations in many ways. For example, for the H-1B, employers are required to pay at least the prevailing wage or the actual wage, whichever is higher, to foreign H-1B workers, and provide the same working conditions and benefits to US workers and foreign workers alike.

Aside from not taking into account the numerous protections of US workers already in immigration law, the Trump administration policy also failed to take account of the record low unemployment rates in the U.S. and shortages of US workers, particularly in the STEM fields.

Formally, there are no new visa requirements, nor are there new grounds of denial. The broad, vague wording of the executive order and the foreign affairs manual leaves consular officers to their own devices. They are able to exercise their discretion to deny visas based on unarticulated, nonspecific accusations that the visa applicant may be taking a job from a US worker, or that a US worker may be available, at least inside the consular officer’s head, as the officials act lacking any kind of facts or proof that there would be a US worker to do the job.

At US Consulates abroad, the consular officers are often second-guessing USCIS approved petitions, in all the employment-based categories, including H-1B (temporary professional), L (specialized knowledge transferees and managerial/executive transferees), O (aliens of extraordinary ability), and P (athletes, entertainment groups, artists and entertainers who are culturally unique).

For E-1s and E-2s, of course, there is no separate USCIS petition needed and the applicant applies directly to the US consulate, but for all the other categories, the visa applicant would already have an approved USCIS petition for the particular category.

For example, for approved H-1B petitions, where the employers have already confirmed that they will be paying a Level I wage of $76,190 for a software developer to work in the NYC area, consular officers may question H-1B applicants as to why the employer would hire the foreign visa applicant rather than a US worker.

Because of the general, overall change in attitude to interpreting all visa requirements in a more restrictive way, and to “look for bad”, it is not possible to separate out the effects of the BAHA policy specifically in terms of percentages. In each and every way, consular officers are scrutinizing visa applications more closely, and denying visas at a much higher rate under the Trump administration.

For example, for E-2s, consular officers are scrutinizing escrow arrangements more closely, as well as complicated corporate structures and the source of the funds for the investment. E-2 renewals have become more difficult and the consular officer will check if the company has adhered to the business plan in terms of hiring US workers and business expansion.

With the L-1B applicants (specialized knowledge transferees), even though there is already an approved USCIS petition, consular officers are looking more closely at whether the visa applicant really has specialized knowledge, and applying a very high standard (a trend towards making L-1Bs into O-1s). For L-1As (executive or managerial transferees), the consulates are questioning functional managers who do not actually manage a large number of employees, as well as those applicants who only recently became managers or executives through a promotion. Lack of English skills and low salaries are also problematic.

Similarly, with O-1s (aliens of extraordinary ability), there is a trend for consulates to re-adjudicate approved USCIS petitions. Is the visa applicant really all that extraordinary?

Re-adjudication and closer scrutiny of already approved petitions is not limited to those consulates outside of Europe (i.e., not limited to non-white people). This is taking place also in European consulates including but not limited to, London and Madrid.

What can an employer do to increase the chances of approval? While it may seem bizarre for a prospective employee to know all about a company’s recruitment, advertising and ability to hire US workers, that is exactly what the prospective employee visa applicant needs to be prepared on. The visa applicant will have to be able to talk knowledgeably about the company’s recruitment practices and how they have not been able to find US workers, and to submit documentation backing this up.

The visa applicant should also be very familiar with the entire contents of the employment petition, and be able to talk and convince the consular officer of each element required for the particular visa category.  Since some time will have passed since the USCIS petition approval and the consular interview, the employer should also provide updated documentation.

The above is not intended as legal advice, and you should hire a competent immigration attorney for advice regarding your specific case.

Copyright 2019 © Heidi J Meyers, all rights reserved.