Following the “Buy American, Hire American” Executive Order, issued in April, the Attorney General and the Secretaries of State, Labor, and Homeland Security have made operational changes that emphasize targeted investigations and individual official’s judgment in carrying out the purposes of the E.O. The E.O. directs the agencies to “propose new rules and issue new guidance . . . to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”
The Department of Labor has announced increases in targeted investigations and changes to LCA forms to create more transparency. It also has raised questions over whether computer programmers actually qualify for H-1B status. Further, Requests for Evidence from the USCIS in H-1B cases have increased substantially.
The State Department has added new guidance to the Foreign Affairs Manual (FAM), the manual used by Consular Officers abroad, regarding the adjudication of H, L, O, P, and E visas. In the sections of the FAM on H, L, O, and P visas, the following has been added:
On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases . . . must be adjudicated.
Regarding E-1 and E-2 Treaty Trader and Treaty Investor visas, an additional sentence was added:
You must also remember that the basis of this classification lies in treaties which were entered into, at least in part, to enhance or facilitate economic and commercial interaction between the United States and the treaty country.
While consular officers have always been alert to possible fraud and abuse, the new guidance suggests that they will be called upon to judge what is in the economic interests of American workers and what will enhance economic growth.
H, L, O, P and E visa holders in the United States should consider consulting with their Jackson Lewis attorney before undertaking travel that will include applying for a visa abroad.