Prepared by WR-   Corporate Corner: Employer Risks and Strategies in the Era of ‘Buy American, Hire American’  1-800-VISA-LAW

Employers and practitioners are reporting growing difficulty in hiring foreign workers, and increasing numbers of requests for evidence and petition delays and denials, since President Trump signed the “Buy American and Hire American” executive order in April 2017. It calls for stepping up monitoring and enforcement efforts, with the H-1B program particularly targeted.

Many actions have followed, both formal and informal. U.S. Citizenship and Immigration Services (USCIS) has stepped up “random and unannounced” employer site visits, for example. The agency said it would focus on:

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. Workers, as defined by statute); and
  • Employers petitioning for H-1B workers who work off site at another company or organization’s location.

Practically speaking, according to reports, the executive order has led to USCIS challenging H-1B new or extension applications for a variety of reasons, such as on the basis of salary levels seeming to indicate that the sponsored position is insufficiently complex to qualify for an H-1B visa, and requiring employers to provide extensive information on contracts and itineraries for H-1B workers at third-party worksites. There has been spillover beyond H-1B issues, too, such as lengthier adjudications, unpredictable policy changes, increasing scrutiny, a sense of arbitrariness and unpredictability, and requests for evidence into other visa categories of interest to employers, including H-2B, L-1, and TN visas, and calls to reduce or eliminate STEM Optional Practical Training.

Although the terrain for employing foreign workers in the United States remains difficult, there are ways you can meet these challenges head-on:

  • Review your existing workforce, decide which employees should be sponsored for H-1B visas, and plan in advance.
  • Perform an immigration audit and verify that all documentation is current.
  • Get your financial documentation in order, for verification that your company is able to support a foreign worker throughout his or her employment. This may include tax returns, contracts, and other documents.
  • Pay attention to application details. Small technical mistakes can be disqualifying. Keep in mind that agents may be looking for reasons to deny.
  • Be prepared to defend your need for an H-1B worker. This issue comes up repeatedly.
  • Take a look at foreign graduating students; don’t rely solely on the H-1B lottery.
  • Contacting your WR immigration attorney for help with strategizing, minimizing risks, global migration and employment issues, and specific cases.