On April 18, 2017, President Trump issued the “Buy American and Hire American” (BAHA) Executive Order, ushering in a new immigration regime in the Department of Homeland Security (DHS). While the laws have not changed, the presidential directive has radically transformed DHS’s approach to adjudicating immigration cases, some would argue, to the detriment of some U.S. companies and their quest to hire and retain the best qualified professionals.
Impact of the Buy American and Hire American Order
In August 2017, the U.S. Citizenship and Immigration Service (USCIS) announced it was once again requiring in-person interviews before a person could obtain her green card through an employer’s petition, as a step to combat fraud and prevent terrorism. The federal agency previously waived such interviews because the evidence submitted with the petition proved the existence of an employer-employee relationship. Months later, USCIS announced another policy change: it would no longer give deference to previously approved H and L cases on extension requests. In other words, if an individual has been in H-1B status for three years and seeks to extend her status for another three years in the same job and with the same employer, USCIS now requires the employer to once again demonstrate that the proffered position is a specialty occupation and that the foreign national is qualified to perform the work. These policies have created longer queues and a redundancy in work and time, frustrating employers and employees while simultaneously slowing down the adjudication process.
Another effect of BAHA has been the unprecedented increase in USCIS’s issuance of Requests for Evidence (RFE), particularly in H-1B cases. In FY2017, USCIS aggressively attacked entry level positions on the grounds that the proffered position did not qualify as a specialty occupation or the job duties were beyond a Level 1 wage. In a case I handled, a semi-conductor company sought to hire an entry-level Algorithm Engineer to join its 5-person team, each of whom had over 20 years of work experience in the industry. The employer explained that the beneficiary, who was a recent Ph.D. graduate, would be closely monitored and given routine tasks with specific instructions because creating a commercially viable product was a vastly different process than the theoretical application of math and science practiced in school. The California Service Center found the position had duties beyond a Level 1 wage and denied the petition. USCIS ignored Department of Labor’s O*Net job zone classifications that correlate the level of education, experience, and SVP ranges. The attack on Level 1 positions and salaries appears to discourage the hiring of newly minted professionals in our workforce and is wreaking havoc on the salary structures that employers have in place that treat all employees equally in their positions irrespective of immigration status.
Moreover, what is troubling is that these RFEs appear to be subtly creating a higher standard of proof than is required by law. One prime example is the use of expert opinion letters. USCIS has historically accepted expert opinions, with a CV, as evidence to support an H-1B case. However, the Agency recently refused to give weight to two expert opinions letters I submitted (one from a university professor and another from an HR recruiter with 20+ years of experience) on the grounds that neither expert personally observed or visited the sponsoring company’s business operations or interviewed its employees. Expecting experts to make personal observations about a company located across the country is burdensome and costly and has never been required before.
Challenges Created By BAHA
The changes discussed above mark USCIS’s departure from long-standing practices, creating an onerous process for all parties involved. American companies must now decide whether to pay an entry-level employee a Level 2 wage, even if her experience does not warrant the higher rate. Some employers are opting out of the process altogether. Attorneys, too, are struggling with knowing how to navigate in our current immigration system, where DHS’s policies are changing daily. This inevitably affects employers, who are paying higher legal fees for what used to be fairly routine immigration applications. Lastly, the long wait times are making families, workers, and employers anxious. Two years ago, USCIS processed spousal green card applications for U.S. citizens within 6 months. In San Francisco, that same case is now taking USCIS 11.5 months to 17.5 months to complete! On the employment-based immigration side, a company now wanting to keep a key employee does not have the luxury of waiting for USCIS to complete its processing before the worker runs out of H-1B time. While premium processing remains available on certain cases, it is not always the recommended option. Requiring officers to adjudicate cases within 15 calendar days invariably results in hasty decisions. In a decision I received denying an H-1B extension application, USCIS failed to mention or acknowledge all the materials and evidence submitted by the U.S. employer. One can only wonder whether the officer truly had sufficient time to review everything carefully and thoughtfully within the 15-day turnaround.
The Trump Administration has reshaped the U.S. immigration landscape since implementing the Buy American and Hire American Executive Order. Only time will tell whether these policy changes are ultimately serving the greater good or are simply building walls to keep foreigners out.
Source: AILA Doc. No. 18082970.