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Volume XI, Number 268

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President Biden Revokes ‘Buy American and Hire American’ Executive Order

On January 25, 2021, President Joe Biden signed Executive Order (EO) 14005 entitled “Ensuring the Future Is Made in All of America by All of America’s Workers,” which directs federal government agencies to “maximize the use of goods, products, and materials produced in, and services offered in, the United States.” While this order directs all agencies to follow this policy via the federal procurement and budgetary process, it also revoked the “Buy American and Hire American” executive order (EO 13788), which President Trump signed on April 18, 2017. Otherwise known as BAHA, EO 13788 had a stated goal of protecting U.S. workers, promoting job growth, and protecting the integrity of the U.S. immigration system.

The BAHA executive order prompted several federal agencies to issue numerous policy memos, with the net result being substantial changes to adjudication standards for applications for various immigration benefits. In October 2017, following the directives of BAHA, U.S. Citizenship and Immigration Services (USCIS) issued an updated policy memo that altered the longstanding policy of deferring to prior adjudications where the petitioner, beneficiary, and underlying facts remained unchanged from a previously approved petition for the same employee. USCIS issued the updated policy to “help advance policies that protect the interests of U.S. workers.” The updated policy created additional challenges for employers to get routine extension of stay petitions approved for workers who were already in the United States and where there had been no significant changes in the job details subsequent to the last petition’s approval.

The BAHA executive order has resulted in an overall increase in the rates of requests for evidence (RFE) and case denials. As recently as fiscal year (FY) 2020, H-1B RFE rates reached almost 30 percent, down from slightly more than 40 percent in FY 2019. Furthermore, H-1B visa petition denial rates exceeded 26 percent in FY 2020 and 34 percent in FY 2019 for cases where an RFE had been issued. For L-1 visa petitions, RFE rates had reached slightly more than 54 percent in both FY 2020 and FY 2019. Petitions for L-1 visas saw denial rates exceeding 43 percent in FY 2020 and 49 percent in FY 2019 for cases where an RFE was issued. In contrast, pre-BAHA RFE rates hovered around 21 percent for H-1B petitions and just over 30 percent for L-1 petitions. Denial rates before BAHA were generally about 20 percent for H-1B petitions post-RFE, and L-1 visa petitions were denied at about a 33 percent rate after receiving an RFE.

It remains to be seen how USCIS visa petition adjudication standards will change in the coming years, and particularly whether RFE and denial rates will drop following the end of the Trump administration and the revocation of BAHA. However, employers can expect that there will be a shift in immigration policy under the Biden administration with a more favorable view towards high-skilled business immigration.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 36
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About this Author

Brian D. Bumgardner, Business Immigration Attorney, Ogletree Deakins, Law firm
Shareholder

Mr. Bumgardner’s practice includes a full range of business immigration matters in a variety of industries, with an emphasis on semiconductor design and manufacturing, industrial and power equipment manufacturing, information technology, biotechnology, life sciences, and health care. He assists employers in obtaining temporary and permanent work visas on behalf of new and current employees.  Mr. Bumgardner possesses extensive knowledge and experience in preparing visa petitions for extraordinary ability workers (O-1), specialty occupations (H-1B, H-1B1 and E-3), and the...

919-789-3143
Andrew Drozdowski, Ogletree Deakins Law Firm, Immigration and Sports Attorney
Associate

Andrew Drozdowski graduated from Boston College (B.A. in Communication) in 2000 and Albany Law School (J.D.) in 2010. Andrew joined Ogletree Deakins in 2013 after working at a boutique immigration firm located in New Jersey and New York City. He is admitted to practice in New Jersey, New York and in the federal District of New Jersey. Andrew is a member of the American Immigration Lawyers Association (AILA) and the New York State Bar Association.

Andrew regularly counsels and advises U.S. and multinational companies on business immigration...

919-789-3120
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