What Is The Buy American, Hire American Executive Order?
On April 18, 2017, President Trump signed the Buy American, Hire American executive order stating, among other priorities, that agencies administering the nation’s immigration laws should take steps to “protect the interests of United States workers” while administering those measures in a manner “consistent with applicable law.”
Does The Executive Order Change The Law?
The E.O does not change the law, but does affect how the current law is applied to actual cases that come before administrative agencies including the U.S. Department of Labor, Department of State, and Department of Homeland Security. Only Congress can change the law.
Has This Executive Order Changed USCIS Administrative Operations?
USCIS has placed an update regarding the executive order on a prominent place on its website at: Buy American, Hire American: Putting American Workers First. The new page encourages the reporting of any perceived abuses in visa programs, and also provides additional data regarding the administration of some visa programs for public review. Although the applicable laws have not changed, USCIS seems to be pursuing a more thorough review of all petitions and applications for immigration benefits. This has resulted in the issuance of many more RFEs (requests for additional evidence) as well as a requirement for more in-person interviews for some immigration processes. Specifically, USCIS has recently announced that it will begin requiring in-person interviews for all employment based adjustment of status applicants, who are the applicants in the last step of the green card process.
Will These New USCIS Procedures Result In More Case Denials?
It is unclear as to whether or not the number of case denials will increase. However, there is a high likelihood that many processes will begin to take much longer. Processes that currently take a few months may begin to take a year or longer to complete. This is especially a concern regarding the I-485 adjustment of status process because that step normally cannot be expedited. Also, the I-485 step must be completed before a person can begin accumulating residency time to qualify for naturalization.
How Has This Executive Order Affected Consular Operations At The State Department?
The Department of State has updated key sections of its Foreign Affairs Manual (the “FAM”) guide book used by consular officers in the adjudication of visa applications. The updated sections include sections that apply to visa categories that include: E-1, E-2, H-1B, L-1, O, and P. The revised sections have begun to result in a more restrictive visa application review procedure at some consular posts. To date, the changes have not been administered uniformly, which means that the adjudication procedures at some posts have changed very little, while other posts have become quite difficult to use.
Any Other Insights Regarding What To Expect In Going Forward? Are There Any Specific Recommendations?
Unfortunately, it is likely that all employment based immigration matters are going to become increasingly more challenging in the next few years. This means that visa holders in categories including: F-1 CPT/ OPT, H-1B, E-1, E-2, L-1, O-1, P, and others should expect an increasingly higher level of scrutiny and review, especially in connection with applying for a new visa stamp outside the U.S. Limiting travel outside the U.S. would be one way to minimize risk. In addition, persons applying for new visa stamps should be thoroughly familiar with all applicable legal requirements, including any requirement to maintain permanent ties outside the U.S., as well as the job description and specific duties applicable to any sponsored employment. Sponsoring employers should also be prepared for the possibility of a site visit from Homeland Security, or possibly the Department of Labor or even the Department of State. Employers may also want to conduct an audit to confirm that their LCA public access files, PERM audit files, and Forms I-9 are in good order. In addition, it will be important for human resources managers to coordinate with immigration counsel regarding any possible changes in job duties, physical worksite, or corporate structure prior to the time when such changes are enacted. The President has made clear that he intends to restrict legal as well as illegal immigration, and this Executive Order, as well as the recent travel ban announcements, show that he will continue to push to make the current immigration processes more difficult.
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