United States: Buy American And Hire American: A Six Month Retrospective On Employment-Based Immigration

Last Updated: October 24 2017
Article by Jacob D. Cherry

On April 18, 2017, President Trump signed the now well-known Executive Order (EO), "Buy American and Hire American." In the immigration context, the EO proclaimed that it "shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad." To this end, the EO directed the various executive departments and 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." Reading the text of the EO, most commentators believed that the likelihood of immediate and substantive changes to the employment-based immigration system were minimal; the regulatory process is not quick, and to the extent new rules are proposed, employers would be provided with advance notice, such that they could assess and mitigate the impact to their business operations and foreign national workforce. In instances where the agencies could simply issue revised policy guidance, the impact was similarly thought to be insignificant, as the current regulatory scheme only provides the ability for discretionary policy changes in limited matters concerning the interests of U.S. workers.

As we cross the EO's six-month anniversary, the reality has been sharply different.  Although no rules have been proposed, nor any policy guidance concerning the interests of U.S. workers, the administration has nonetheless effectuated a myriad of changes on employment-based immigration. These changes, however, are occurring more subtly—they are happening below the radar of the Federal Register, and in a less transparent fashion than through formal policy guidance.

Requests for Evidence

From the employer's perspective, the most notable change is the dramatic increase in Requests for Evidence (RFEs) from U.S. Citizenship and Immigration Services (USCIS). An RFE is issued in response to a filing for an immigration benefit in instances in which the adjudicating officer does not believe there is sufficient evidence to approve the benefit sought. The RFE affords the petitioner (typically the foreign national's employer) an opportunity to supplement the evidentiary record. 

The increase of RFEs in the H-1B visa context is illustrative of the post-Buy American and Hire American era. The H-1B visa is the most frequently utilized form of work authorization within the high-skilled employment-based immigration system. Employers file H-1B petitions on behalf of foreign national employees whom they seek to employ in "specialty occupations"— that is, positions that require the theoretical and practical application of knowledge that is attained through a bachelor's or higher degree in a specific field of study. Common occupations that qualify for H-1B status include software engineers, finance professionals, doctors, and university professors. On the basis of data provided by USCIS, Reuters has concluded that between January 1 and August 31, 2017, the agency issued 85,000 RFEs on H-1B petitions, which corresponds to a 45 percent increase over the same period last year. The number of actual H-1B petition filings increased less than 3 percent during that same period. What does this indicate? To begin with, the current increase in RFEs—affecting companies nationwide and across all industries—is actually greater than the findings by Reuters suggests, as half of the data in that study corresponds to the pre-EO timeframe. In actuality, many immigration practitioners are reporting a 100 percent increase (or more) in H-1B RFEs since May 2017, as compared to the same time period last year.

The numbers only tell half the story. Since the signing of the EO, Congress has not passed any legislation concerning H-1B visas, nor has USCIS promulgated any new regulations. In other words, despite the absence of any legal or regulatory changes, USCIS has determined that employers are filing deficient petitions at double the rate of last year. The nature of the RFEs strain credulity even further. For example, multiple RFEs have questioned whether mid-level software engineers are eligible for H-1B classification. The basis for this challenge is the Department of Labor's Occupational Outlook Handbook (OOH), which notes that "[s]oftware developers usually have a bachelor's degree, typically in computer science, software engineering, or a related field. A degree in mathematics is also acceptable." The RFEs note that because a range of credentials is acceptable, including less than a bachelor's (on account of the OOH's use of "usually"), it is not evident that a petitioner is offering employment in a specialty occupation. Putting aside the fact that the OOH contained identical language last year, the settled case law on this matter, the fact that USCIS adjudicators must apply a preponderance of the evidence standard, and the notion that different universities may attach different degree names to substantially similar courses of study, the employer might still have the very rational and legitimate question of why this exact same job description has not caused USCIS any concerns in past years. USCIS has not offered any explanation for the increase in RFEs.

The "Level 1" Issue

The summer of 2017 also witnessed the widespread arrival of the "Level 1" issue. Although it takes the form of an RFE, it is sufficiently unique as to merit its own discussion. An employer that files an H-1B petition must pay the foreign worker a salary that is the higher of the actual wage (the wage paid by the employer to all other individuals with similar experience and education for the employment in question) or the prevailing wage (the average wage paid to similarly-employed workers in the specific occupation and geographical region). Employers may use a variety of sources to determine the prevailing wage, the most common of which is the Online Wage Library from the Department of Labor's Office of Foreign Labor Certification. The Immigration and Nationality Act mandates that government wage surveys, including the Online Wage Library, set forth at least four wage levels. These wage levels correspond to the required experience, education, and level of supervision that is associated with a given position; the more senior the role (corresponding to more complex tasks, greater autonomy, and higher levels of experience), the higher the wage level. For H-1B petitions filed on behalf of recent university graduates, the Department of Labor's prevailing wage guidance sometimes leads employers to a Level 1 wage (as recent graduates are more likely to fill entry-level professional positions, as compared to professionals with greater experience).

The Level 1 RFEs generally contain one of the following assertions by USCIS: (1) the job offered by the petitioner is beyond entry level and therefore is not appropriately classified as a Level 1 position; or (2) the very nature of a Level 1 position means that it is not a specialty occupation (and is therefore not a job that aligns with the H-1B regulations). Some RFEs make both claims. The majority of these claims fail for multiple reasons, including USCIS's misconstruction of the wage level system and overall grounds of jurisdiction. No one would reasonably argue that a medical doctor or engineer does not require a degree; yet every doctor and engineer begins his or her career with limited professional experience and a high amount of supervision. A first-year medical resident does not independently perform surgeries, but that fact does not diminish the complexity of the position or the need to draw upon knowledge gained through medical school.

Of all the post-EO changes, the Level 1 RFEs are most closely associated with the stated goal of protecting the economic interests of U.S. workers. It also closely mirrors the EO's directive for agencies to "suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid" employees. The prevailing wage system was established not only to protect foreign nationals but also to ensure that the wages of U.S. workers are not undercut. By challenging the Level 1 wage assigned to an H-1B petition, USCIS could be attempting to force the employer's hand in offering a salary to foreign national workers that does not align with the employees' experience. Irrespective of the policy merits to this approach, or whether the legal framework even authorizes the agency to make these challenges, USCIS has not offered any explanation for the sudden arrival of wage challenges (aside from an ambiguous footnote in a March 31 policy memorandum), let alone an acknowledgement that the challenges are occurring at all.

Buy American and Hire American, Department of State Style

As discussed above, employers seeking to hire H-1B workers file petitions with USCIS to demonstrate, among other items, that the offered position meets the statutory requirements for H-1B classification, as well as evidencing that the foreign national worker qualifies on account of prior education and/or experience. Upon approval by USCIS, foreign nationals that seek to enter the United States in a work-authorized capacity must generally obtain a visa at a U.S. Consulate abroad. The consulates (operated by the Department of State) are principally charged with ensuring the applicant is admissible to the United States—for instance, that no criminal convictions or prior immigration violations exist that preclude entry into the country. The consular officers who adjudicate these visas obtain their policies and procedures from the Foreign Affairs Manual (FAM), which "convey[s] codified information to Department staff and contractors so they can carry out their responsibilities in accordance with statutory, executive and Department mandates."

On August 9, 2017, the following text was added to the H-1B section (and many other sections) of the Foreign Affairs Manual:

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 under [the H-1B regulations] must be adjudicated. 

This is a curious provision, particularly since the FAM itself notes that an approved H-1B petition by USCIS is "prima facie evidence that the requirements for H classification which are examined during the petition process have been met." To the extent the new provision was meant to emphasize "the prevention of fraud or abuse," the FAM already contained guidance to address those limited situations in which a consular officer has concerns regarding eligibility for H-1B status, by authorizing officers to "request any additional evidence which bears a reasonable relationship" to a question of visa eligibility. Since consular officers are principally charged with evaluating the admissibility of H-1B applicants, an issue that is wholly unrelated (and outside the Department of State's jurisdiction) to the economic interests of U.S. workers, the mandate to incorporate the "spirit" of the EO potentially signifies an unwelcome ground upon which to expand the scope of the visa interview process.

The Department of State has utilized the FAM platform to implement additional hurdles on high-skilled immigration. Prior to obtaining H-1B status, many foreign national students who graduate from U.S. educational institutions obtain Optional Practical Training (OPT), which provides for a period of employment authorization ranging between 12 and 36 months. The OPT program used to have logistical and timing challenges on account of the differences between the educational calendar year and the government's fiscal year. In some instances, this caused a gap in employment authorization, starting from the time the OPT expired (which was typically in the summer) and lasting until the H-1B took effect (which was typically on October 1, the start of the government's fiscal year). Initially under the George W. Bush administration and subsequently during the Obama administration (following a legal challenge), USCIS issued the so-called "cap gap" rules that were specifically designed to maintain employment continuity during this OPT to H-1B transition period. 

Nonetheless, on August 8, 2017, the FAM added the following guidance for Consular Officers: "If you are not satisfied that the applicant's present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa." The Immigration and Nationality Act (INA) is the basis for this refusal. The INA requires students (and individuals on OPT) to have "a residence in a foreign country which he has no intention of abandoning." Over time—and culminating in the cap-gap regulations—the government recognized that future employment in H-1B status is not incompatible with this foreign residence requirement. Although the FAM recognizes that the "hypothetical possibility" of a future change of visa status is not grounds to deny the visa application, the addition of this provision to the FAM raises the risk of refusal for certain foreign nationals on OPT, effectively precluding an application for a new visa during certain periods in the transition from F-1 to H-1B status. The Department of State has not offered any explanation for this policy change, and it remains unclear how an employee's foreign residence correlates to the economic interests of U.S. workers.

Advance Parole Denials

Upon filing the final application of the permanent residence ("green card") process, foreign national employees are often not permitted to travel internationally until the government issues an advance parole document, which serves as interim travel authorization until permanent residence is granted (international travel beforehand can result in the denial of the green card, as the government views travel prior to the issuance of the advance parole as "abandonment" of the permanent residency application). The notable exception to this travel restriction is individuals in H-1B or L-1 status, who are not required to wait for the issuance of the advance parole, and may travel on their existing visas. Most individuals in H-1B and L-1 status (and their dependent family members) nonetheless apply for the advance parole, as it can ensure the ability for continued international travel after the expiration of a visa. Additionally, if the government approves the green card application of an H-1B or L-1 employee prior to the applications of his or her dependent family members, the advance parole becomes the only means for international travel.

Beginning in July, USCIS began denying advance parole applications for individuals in H-1B or L-1 status who traveled internationally prior to the issuance of the advance parole. Since the employees in these situations were permitted to travel on their valid H-1B/L-1 visas, the applications for permanent residence were not considered abandoned; nonetheless, USCIS determined that the travel constituted an abandonment of the advance parole application, therefore justifying a denial. For many years, the instructions to the form utilized for the advance parole application (USCIS form instructions are accorded the weight of regulations) has contained language noting that departure from the United States prior to issuance of the advance parole is considered abandonment; yet, in a survey of immigration practitioners, no one could recall a single instance in which USCIS had in fact exercised that discretion and denied an application. The American Immigration Lawyers Association contacted USCIS regarding this apparent and sudden policy shift, and it responded that such denials were proper, "notwithstanding prior practice to the contrary."

Conclusion

These policy changes are not intended to be an exhaustive list of post-EO actions that have placed additional scrutiny, delays, and burdens on employers that seek to hire high-skilled foreign talent. Such a list would be quite lengthy, and would include the imposition of mandatory interviews for employment-based permanent residence applicants and the evolving standards for conduct that may be construed as "misrepresentation."

Despite the lack of formal rulemaking (and in many instances, policy guidance), change is most certainly taking place. Much of the policymaking is occurring informally, causing employers to react upon the advent of a new adjudication trend, rather than proactive planning in response to the transparency offered by the regulatory process. What is not clear, though, is how some of these changes comport with the policy objectives of the Buy American and Hire American EO, leading many to wonder whether the administration has another policy objective in mind. With careful planning, however, and a compliance-driven program management approach to immigration, employers can take steps to mitigate the effects of these changes on their business operations and foreign national workforce.

A version of this article first appeared on Law360.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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