Two Years of the Buy American Hire American Executive Order: Commemorating and Commiserating

Meredith W. Barnette, Esq., Partner

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The U.S. Citizenship & Immigration Services (USCIS) is commemorating the second anniversary of the Trump Administration's Buy American Hire American Executive Order (BAHA), noting changes made better protect U.S. workers' jobs and wages, enhance fraud detection and prevention in employment-based visa programs, and increase the overall transparency of those programs for the American public. BAHA's goals include creating higher wages and employment rates for U.S. workers and protecting their economic interests by rigorously enforcing and administering immigration laws. It also directs the Department of Homeland Security, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries. While BAHA's stated purpose is admirable, many believe its impact has been to stifle global mobility and valuable talent in a tight labor market. Employers have certainly felt the effects of the overarching Executive Order and the result of multiple policies which have impacted immigration over the past two years. Below are some of the most recent updates:

Increased Denials and Issuance of RFEs for Nonimmigrant Visas

BAHA's goal of rigorous enforcement of immigration laws has resulted in an increase in Requests for Evidence (RFE) issued after filing a petition with USCIS, as well as an increase in petition denials, especially for H-1B and L-1 visa petitions. In FY2017, when BAHA was first implemented, the number of RFEs for H-1B petitions increased by 46%. In the fourth quarter of FY2017 alone, nearly 70% of H-1B cases received an RFE. During that same year, H-1B denials increased by 41%. Denials for L-1A and L1B petitions also increased by 67% and 32% respectively [1].

Excessive Delays in Case Adjudications

USCIS processing delays have reached all time highs. In FY2018, 94% of all immigration petitions took longer to process than compared with FY2014. Inefficient government policies, in response to BAHA, are largely to blame, even though application rates are decreasing. According to recent USCIS data, the government's average processing time increased by 19% from FY2017 to FY2018, even while the total number of cases filed decreased by 13% during the same period [2].

H-4 Employment Authorization Rescission Regulation Pending Review

In October 2018, the Department of Homeland Security released its Regulatory Plan which provides the public with an overview of anticipated changes to regulations. The Plan indicated an anticipated rescission of the final rule extending eligibility for and Employment Authorization Document (EAD) to certain H-4 dependent spouses [3]. The rule was sent to the Office of Management and Budget (OMB) on February 20, 2019, and is currently pending review [4]. Once OMB completes its review, a notice of proposed rulemaking will be published in the Federal Register and will be open to the public for comment. The proposed regulation will not take effect until finalized by the Department of Homeland Security, a process that typically takes several months.

Unlawful Presence Memorandum and its Impact on Students and Exchange Visitors (F-1, M-1, J-1)

On August 9, 2018 an unprecedented policy memorandum seriously altering the definition of "unlawful presence" for F-1, M-1 and J-1 visa holders came into effect [5]. Prior to this memo, a student only started to accrue unlawful presence once an immigration judge or USCIS determined a violation occurred. Under this new policy, students start accruing unlawful presence the day after a status violation, even if the student is unaware of the violation. This could lead to a 3- or 10-year bar to reentering the US, and the inability to change to another nonimmigrant visa status.

However, litigation over the policy memorandum has been filed in federal court and is ongoing. As a result of the litigation, the court ordered a nationwide preliminary injunction stopping implementation of the policy until further order of the court.

Changes to the H-1B Lottery Process

On January 31, 2019, USCIS issued a final rule [6] which changes the order in which H-1B cap-subject petitions are selected and also requires electronic registration of the company petitioner and potential H-1B employee beneficiary. The final rule became effective April 1, 2019, but due to system testing, the electronic registration requirement has been suspended for this year's H-1B cap season. Important points regarding the new rule include:

H-1B Lottery Selection Changes

  • USCIS will count all applicants towards the H-1B regular cap first. Once a sufficient number of applicants have been selected for the H-1B regular cap, USCIS will select applicants towards the advanced degree exemption.
  • USCIS anticipates an increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master's degree or higher from a U.S. institution of higher education.

H-1B Electronic Registration

  • USCIS anticipates the system will be implemented for the FY2021 H-1B cap with no fee requirement.
  • U.S. employers will be required to electronically register each potential H-1B employee by providing USCIS with basic information about the person and the position.
  • Employers will be required to attest that they intend to file an H-1B petition for the beneficiary in the position for which the registration is filed, among other attestations.
  • Petitioners will need to file a separate registration for each beneficiary and will be limited to one registration per beneficiary for the same fiscal year.
  • USCIS will conduct the H-1B lottery from the pool of timely-filed electronic registrations and only those who are selected will be eligible to file a full petition.
  • Those selected will be notified that they are eligible to file an H-1B petition within a designated filing period, which will be at least 90 days.

Although the complete details of the electronic registration process are unknown, USCIS has indicated that it will engage in stakeholder outreach and provide training to the public on the registration system prior to implementation.

USCIS Publishes Revised I-539 and Implements Required Biometrics

As the H-1B cap season came into full swing in February 2019, USCIS abruptly announced it revised Form I-539, Application to Extend/Change Nonimmigrant Status and would require every applicant and co-applicant to pay a biometrics fee and attend a biometrics appointment, regardless of age. Issues to be mindful of regarding the new form and biometrics process include:

  • Every co-applicant must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.
  • Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO non-immigrants, as noted in the instructions.
  • Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number.
  • Extension requests for dependents (i.e., H-4, L-2, TD, E-2, etc.), filed concurrently with the principal's extension request under premium processing, will no longer be adjudicated concurrently due to the new biometrics requirement.
  • USCIS anticipates at least a 17-day delay in the issuance of a biometrics appointment; further delays in the already long queues for adjudications are unknown at this time.
  • Timing for adjudication is more critical, particularly for H-4s, L-2s and E-2 spouses, as employment authorization documents cannot be extended until the primary nonimmigrant visa status is extended.

The BAHA executive order has also resulted in some other changes worth mentioning:

  • A ramp-up of government site visits of visa-sponsoring employers and I-9 Notices of Inspection has continued. Although the USCIS Fraud Detection and National Security unit has existed since 2009, it appears that it has increased the volume of compliance visits.
  • Travel challenges for foreign nationals have evolved since a new interpretation of the regulations concerning applying for an Advance Parole travel document as part of the green card process. Whereas in the past, foreign nationals were able to travel internationally in certain situations while the Advance Parole application was pending with USCIS, they now must remain in the US until the Advance Parole document is issued, usually a 3-5 month time period. Otherwise, the Advance Parole application will now be denied by USCIS unless the applicant is applying for an Advance Parole renewal and traveled on an existing Advance Parole document which is valid for the duration of their trip. This is especially problematic for those that need to travel regularly for business purposes.
  • Lastly, Canadians are now unable to apply for a renewal of L-1 nonimmigrant status at a U.S. port of entry, which had always been permissible in the past. Therefore, L-1 renewals must now be filed with USCIS, with limited exceptions for intermittent and commuter L-1 nonimmigrants. With the increase in overall scrutiny of L-1 visa petitions, even in extensions for the same job, this results in longer processing times and requires much more advanced planning on the part of the employer and employee.

While the law has not changed, USCIS' interpretation and policies have changed, for the most part without notice. Unfortunately for many employers and employees this has caused uncertainty, delays, and unwelcome last-minute changes.

To schedule a consultation or learn more about your immigration options, please contact our office to speak with an attorney.