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Buy American, Hire American Creates Additional Bumps in H-1B Path


Blue background with stars with decorative red and white stripes on the right-hand side. The words, "Buy American, Hire American" and subtitle, "Protecting the Interests of U.S. Workers" are in the blue background.

Have you ever driven a car on an unpaved road? It’s bumpy, and the path isn’t always clear.

This is the situation immigration attorneys and their clients are facing with the H-1B process this year.

In the past, once your petition was selected in the H-1B lottery, your chances of receiving the H-1B approval were good. Many petitions were approved with no Requests for Evidence.

On April 18, 2017 President Trump signed the Buy American and Hire American Executive Order. As part of the order he decreed that “Every agency shall scrupulously monitor, enforce, and comply with Buy American Laws, to the extent they apply, and minimize the use of waivers, consistent with applicable law.”

For United States Citizen and Immigration Services (USCIS) this means that decisions to approve H-1B petitions must now withstand increased scrutiny from the order.

The result is that petitions that would have sailed through the process in the past are now receiving Requests for Evidence. The majority of the petitions that I filed last season received Requests for Evidence. This is unusual.

I can tell you from my clients’ experience and my own, these requests feel really invasive. Big Brother to the nth degree. If you are facing Requests for Evidence and feel like the government is infringing on your privacy, you are not alone.

It seems like everything is being questioned.

In the guise of “protecting American jobs,” a few new arguments have arisen as well.

One new trend for H-1B petitions is the need to prove that you meet the prevailing wage for that position in that geographical area. A basic requirement that was formerly sufficient as an understanding now requires specific documentation to prove your wage is just.

Another argument we are seeing is the claim that because H-1B petitions are for specialty occupations, they can’t be entry level by definition and thus Level 1 wage levels do not apply.

Immigration lawyers have countered that even doctors, lawyers and postdoctoral positions have entry level positions, specialty professions where new entrants continue to learn on the job.

Other new USCIS arguments include the claim that positions that were considered specialty before – especially computer systems analyst – don’t qualify as specialty now. A key strategy used to counter this argument is to document the applicant as one of many in that position at their company and then prove that their colleagues have college degrees via copy of the degree or links to their LinkedIn profiles.

This H-1B environment may seem hostile, but please don’t despair. What we need is extra patience and creativity. I am here to help you prepare your petition and to help you respond to any Requests for Evidence that you may receive.

Like an unpaved road, this environment is new and bumpy terrain to navigate, but it is not impossible to pass through.

H-1B petitions are still getting approved.

My strategy for clients is to address everything we can upfront to give your petition the best chance of approval the first time through, and the fewest Requests for Evidence if any do arrive.

And even in this tough environment, pleasant surprises occasionally occur.

I recently worked on an EB-1 multinational manager case for a British professional who was managing the digital strategy function for his company. In the U.K. he had no subordinates, which generally makes USCIS question the specialty aspect of the visa.

In the U.S., the foreign national was put in charge of subordinates who had Bachelor’s degrees. I was bracing for a Request for Evidence and the need to collect the subordinates’ credentials when USCIS approved the petition no questions asked.

I know that your company still needs the skills of your foreign national workers and am ready to guide you through the process of H-1B petitions and Requests for Evidence. Please contact me at 630-262-1435 if you have any questions or would like to discuss filing an H-1B petition.