» Immigration Law Updates

Buy American, Hire American EO Impacting Visa Adjudications and Increasing Site Visits

August 17, 2017

The “Buy American, Hire American” (BAHA) Executive Order signed by President Trump in April instructed government agencies to enforce existing H-1B regulations to ensure that U.S. workers’ jobs and wages are protected, and to review and revise the H-1B program so that highly skilled and highly paid foreign workers have preference.

The USCIS announced in April that it would be increasing site visits to U.S. employers, in an effort to deter and detect H-1B fraud.

In June, the Department of Labor announced policy initiatives designed to “confront visa program fraud and abuse.” These initiatives will surely result in more DOL investigations of Labor Condition Application (LCA) compliance, including the obligation to pay the higher of actual or prevailing wage and ensuring payment of H-1B workers even during non-productive periods (i.e., no “benching”).

The Department of State recently revised the Foreign Affairs Manual (FAM), its publication used by U.S. Consulate officials as guidance when determining eligibility for nonimmigrant and immigrant visas. The revisions to the FAM specifically reference the BAHA Executive Order goal 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.”

WHAT TO EXPECT

Although no regulations have been changed following the BAHA Executive Order, nonimmigrant workers and U.S. employers are experiencing challenges in situations which previously posed no problems. For example,

• Applicants for all types of nonimmigrant visa stamps at U.S. Consulates have received denials, even when the USCIS has approved the employer’s petition. While these were not clients of Weaver Schlenger, we understand from our network of immigration attorneys that the Consular officials are exercising extreme vetting (not limited to individuals from primarily Muslim countries) and analyzing, in many cases inappropriately, whether a U.S. worker could perform the applicant’s job. Therefore, we anticipate delays in scheduling visa appointments and visa issuance, and additional layers of scrutiny;
• F-1 students who apply for visa stamps are being asked to establish their nonimmigrant intent; the government wants assurances that the F-1 student will return to their home country after the completion of their program in the U.S. (Note: While the H-1B and L-1 visas allow for dual intent, the F-1 does not);
• H-1B petitions for entry-level technical positions filed by employers of all sizes and across various industries are receiving Requests for Further Evidence (RFEs), challenging employers to establish that a Bachelor’s degree in a specialized field is truly required;
• In addition, H-1B petitions for experienced positions and lateral transfers filed by employers of all sizes and across various industries also are receiving RFEs, also challenging employers to establish that a Bachelor’s degree in a specialized field is truly required and/or requesting proof that there is sufficient work to keep the employee employed full time;
• Employers are receiving site visits, sometimes on multiple occasions, with requests to speak with various H-1B and L employees;
• So far, we have not observed a rise in audits of PERM applications but, in light of the recent DOL policy initiatives, anticipate more challenges to PERM and likely changes to the process designed to enhance protections to U.S. workers and salaries.

RECOMMENDATIONS

Weaver Schlenger recommends that employers take the following actions now to ensure full compliance with immigration regulations. We are here to assist clients and other employers.

• Attend an upcoming Webinar on immigration compliance. Check back on our website shortly for more information about our September 22 webinar on immigration compliance.
• Develop standard operating procedures in the event of a site visit.
• Ensure that managers communicate all potential changes in job, salary or location to the appropriate party responsible for immigration compliance (some changes will trigger the need to file amendments or complete posting notices).
• Conduct training at all work sites on how to prepare for a site visit.
• Audit I-9 and E-Verify (if applicable) compliance in advance of a government site visit.
• Audit LCA file maintenance and ongoing compliance in advance of a government site visit.
• Audit PERM file maintenance in advance of a government site visit.
• Perform due diligence in advance of a corporate merger or other change in entity.
• Develop immigration policies which include a recommendation that foreign national employees notify appropriate parties (including immigration counsel) in advance when they need to travel and apply for visa stamps.
• Consult with employees who will be applying for nonimmigrant and immigrant visa stamps at a U.S. Consulate (this includes a thorough analysis of immigration history, job duties and qualifications, and preparation on how to answer questions).

Please contact the attorney at Weaver Schlenger with whom you normally work, or send inquiries to News@wsmimmigration.com.