“Buy American and Hire American” Executive Order - REVOKED on 2/5/2021
These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in these FAQs without first seeking advice from a qualified attorney.
PLEASE NOTE: President Trump's Buy American Hire American (“BAHA”) Executive Order was revoked by President Biden on February 5, 2021. We will keep this information on our website for a period of time as a reference only.
BAHA will have an impact on nonimmigrant workers and their U.S. employers. The following three areas will be most impacted:
(1) Visa applications at U.S. Consulates abroad;
(2) Uptick in Requests for Further Evidence (RFEs) for H-1B petitions regarding requirements of the offered position;
(3) Uptick in site visits at U.S. employer locations where H-1B and L-1 workers are employed.
Visa Stamping Changes
How will the BAHA executive order impact applications for visa stamping at the U.S. Consulates abroad?
Immigration attorneys nationwide report that applicants for nonimmigrant visa stamps at U.S. Consulates have received denials, even when the USCIS has approved the employer’s underlying petition. In particular, L-1, F-1, O-1, and E-2 visa applicants have been targeted.
We understand from our network of immigration attorneys that Consular officials are using “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, delays in visa issuance, additional scrutiny, and even possible denials.
What is the single most important thing a visa applicant can do to be prepared and confident during a visa appointment?
The single most important thing an applicant can do in preparation for a visa appointment is to carefully review and understand the contents of the underlying petition on which the visa is based, with particular attention to:
(1) All applicants: the position description from the employer letter of support;
(2) For L-1s: The complex, specialized, or managerial duties described; For H-1Bs: the specialty occupation duties; For O-1s: the extraordinary ability required to perform in the role;
(3) How the applicant’s academic training and experience allows them to perform the specific duties of the petition, and;
(4) Information about the employer—where they have offices and what they do.
We recommend that every applicant for a visa application practice answering these questions in advance of the appointment so that they feel comfortable at the time of interview. Please also notify WSM in advance of any international travel.
More specifically, what types of questions are Consular officers asking during routine visa stamping appointments, and how should our employees be ready to respond?
F-1 students who apply for visa stamps are being asked to establish their nonimmigrant intent. Student applicants should therefore be prepared to show their intention to return home after graduation. Evidence could include: (1) social, (2) familial, and (3) financial ties to their country of permanent residency, and (4) information about how their schooling in the U.S. will benefit their ultimate career at home.
L-1 applicants are being asked to confirm that they are not displacing a U.S. worker, and those applicants should be prepared to show why their job could not be filled by a U.S. employee. For example, the L-1 applicant (whether an Executive, Manager, or Specialized Knowledge employee from a foreign entity abroad) should be able to articulate:
(1) Why their specialized training and experience at the company’s foreign entity has prepared them for the role in the U.S., and
(2) Why a new U.S. worker hire would not possess the same level of training and experience.
H-1B applicants should be able to articulate (1) why their position requires at least a Bachelor’s degree in a particular, specialized discipline, and (2) how their degree or professional experience has prepared them to fill the job.
Uptick in H-1B RFEs
How are H-1B petitions filed with the USCIS being impacted by the new BAHA executive order?
H-1B petitions for entry-level positions filed by employers of all sizes and across various industries are receiving Requests for Further Evidence (RFEs) that challenge employers to prove that a Bachelor’s degree in a specialized field is truly required for the position.
In addition, H-1B petitions for experienced positions and lateral transfers filed by employers of all sizes and across various industries are receiving RFEs challenging employers to prove that there is sufficient work to keep the employee employed full time.
Uptick in Site Visits
What can employers and employees expect from a site visit in the wake of the “BAHA” memo?
Employers are receiving more site visits from USCIS officers with requests to speak with H-1B and L-1 employees. To prepare, H-1B and L-1 employees should be familiar with the underlying petition filed for their role, and be prepared to answer detailed questions regarding (1) job title; (2) job description; (3) salary, and (4) rate of pay.
What should employers do to prepare for more site visits?
Employers should (1) communicate all potential changes in job, salary or location to WSM in advance of those changes so that amendments may be filed where necessary; (2) develop standard operating procedures in the event of a site visit, and (3) perform due diligence in advance of a corporate merger or other change in entity.