October 17, 2017

October 16, 2017

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New Operational Directives Reflect ‘Buy American, Hire American’ Executive Order

Following the “Buy American, Hire American” Executive Order, issued in April, the Attorney General and the Secretaries of State, Labor, and Homeland Security have made operational changes that emphasize targeted investigations and individual official’s judgment in carrying out the purposes of the E.O. The E.O. directs the 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.” 

The Department of Labor has announced increases in targeted investigations and changes to LCA forms to create more transparency. It also has raised questions over whether computer programmers actually qualify for H-1B status.  Further, Requests for Evidence from the USCIS in H-1B cases have increased substantially.

The State Department has added new guidance to the Foreign Affairs Manual (FAM), the manual used by Consular Officers abroad, regarding the adjudication of H, L, O, P, and E visas. In the sections of the FAM on H, L, O, and P visas, the following has been added:

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 . . . must be adjudicated.

Regarding E-1 and E-2 Treaty Trader and Treaty Investor visas, an additional sentence was added:

You must also remember that the basis of this classification lies in treaties which were entered into, at least in part, to enhance or facilitate economic and commercial interaction between the United States and the treaty country.

While consular officers have always been alert to possible fraud and abuse, the new guidance suggests that they will be called upon to judge what is in the economic interests of American workers and what will enhance economic growth.

Jackson Lewis P.C. © 2017


About this Author

Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

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