By Bruce E. Buchanan and Adam Cohen
On April 18, 2017, President Trump issued an Executive Order (EO) entitled “Buy American and Hire American”. In this article, I will discuss the portion of the EO concerning “Hire American” and employment-based visa issues and their negative impact on employers.
Hire American Executive Order
The substantive portions of the EO are as follows: Secretaries of State, Labor, Department of Homeland Security (DHS), and Attorney General, “shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect interests of U.S. workers in administration of our immigration system, including through prevention of fraud or abuse.” Furthermore, it states: “In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
USCIS Actions Pursuant to Hire American
Initially, the operational changes expressed by USCIS included: setting up dedicated e-mail addresses for the public to report H-1B and H-2B abuses, enhancing information sharing between DHS, Department of State (DOS), Department of Justice (DOJ), and Department of Labor (DOL), and providing H-1B reports to provide transparency to U.S. workers. Additionally, USCIS also announced it was enhancing the current site visit program of H-1B dependent employers (15%+ H-1B visa holders) and employers petitioning for H-1B workers to work off-site at another location. The USCIS stated these actions were to further ensure the integrity of the immigration system.
On October 23, 2017, the USCIS issued “Policy Memorandum: Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status.” By this memo, the USCIS rescinds a 2004 memo and a portion of the 2015 L-1B memo that called for deference in I-129 extensions where the parties and underlying facts were the same and there was no material error in the prior adjudication. The memo stated the prior memo had shifted the burden of proof to the USCIS and it should always remain with the Petitioner, not the USCIS.
On March 31, 2017, the USCIS issued “Policy Memorandum: Rescission of the December 22, 2000 Guidance memo on H1B computer related positions”. Even though the memo was issued before the EO, its reasoning is similar to other USCIS memos and actions after the EO. The memo states an entry-level computer programmer position would not generally qualify as a specialty occupation position. In a footnote, the memo states USCIS officers must review the LCA to ensure the wage level is accurate.
On August 9, 2017, the USCIS issued another Memorandum concerning the definition of “Affiliate” or “Subsidiary” for purposes of determining the H-1B ACWIA Fee, where it said officers should count the petitioning employer’s other affiliates and subsidiaries in order to determine whether the $750 or $1500 ACWIA fee is appropriate.
Another change was never announced in a memo; rather, it was seen by hundreds of companies and immigration attorneys, starting in June 2017, when over 400 Requests for Evidence (RFE) were issued in cases where a Level 1 wage was indicated on the Labor Condition Application (LCA). The RFEs question whether a Level 1 wage is appropriate given the complexity of the job duties, or whether the position is still a specialty occupation because the Level 1 wage indicates that the position is entry-level. This trend came about without any direct policy statement or memorandum preceding it.
DOL Actions Pursuant to Hire American
In a June 6, 2017 press release, Secretary of Labor Alexander Acosta directed agencies within the DOL to “aggressively confront visa program fraud and abuse,” stating that “[e]ntities who engage in visa program fraud and abuse are breaking our laws and are harming American workers, negatively affecting Americans’ ability to provide for themselves and their families.”
On August 3, 2017, DOL issued a Federal Register notice of intent to revise the LCA. Proposed changes to the LCA include: asking for the number of workers under LCA who will perform work at the place of employment; asking whether the worker subject to the LCA is to be placed with a secondary employer; and more detailed descriptions of employer’s LCA attestations & notice.
DOS Actions Pursuant to Hire American
On August 9, 2017, the DOS issued additions to the Foreign Affairs Manual (FAM) based upon the Executive Order for visa categories – H-1B, L, O-1, E-1, E-2 and P. The new FAM language states in adjudicating these nonimmigrant visa categories, consular officers should keep the “spirit” of the EO in mind – remembering to protect American workers regarding wages and “prevention of fraud or abuse”. Interestingly, except for H-1B visas, these nonimmigrant visa categories do not have a wage component on how much a worker must be paid. Thus, it is unclear why the DOS issued the new FAM language.
Other Negative Actions toward Employment-Based Visas
The following other actions by the Trump administration have negatively impacted Employment-Based visas: postponement and probable withdrawal of the International Entrepreneur Rule, which was expected to go into effect on July 17, 2017; the new requirement for in-person interviews for all employment-based immigration cases, effective October 1, 2017; and denial of Form I-131 applications when an applicant travels abroad while the I-131 application is pending.
What started out as just another Trump Executive Order, which looked like “window dressing” to Trumpites, has instituted several significant changes for H-1B visa and other non-immigrant visas. Only time will tell what other significant changes may be on the way from the USCIS, DOS, and DOL concerning H-1B visas and other non-immigrant visas.