The U.S. Department of State (“DOS”) has updated the Foreign Affairs Manual (“FAM”) to provide U.S. consular officers with guidance that implements the President Trump’s April 18, 2017 Executive Order on Buy American and Hire American (E.O. 13788). The FAM deals exclusively with the adjudication of nonimmigrant and immigrant visas and provides baseline guidance to consular officers to make informed decisions based on U.S. immigration laws, regulations, and current policy goals.
Here are 5 fears arising from the DOS’ recent updates in the FAM:
- Will Consular Officers Unduly Consider The Impact of Issuing an Nonimmigrant Work Visa on U.S. Employment Rate and Wages? The following provision has been put in the “overview” section of the FAM for H, L, O, and P Visas:
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 under INA 101(a)(15)[(H), (L), (O), or (P)] must be adjudicated.
Although there are some inherent protections for U.S. workers built into the adjudication process of these nonimmigrant visa categories (such as certified Labor Condition Applications from the Department of Labor for H-1B petitions or consultation requirement for certain O petitions), it’s possible that this addition to the FAM could accelerate a trend of more restrictive adjudications of H, L, O, and P visas at U.S. consulates which take into account the effect of the nonimmigrant’s entry into the U.S. on U.S. workers, their ability to find employment, and their wages.
- Will E-2 Visa Holders Be Required to Demonstrate Employment of U.S. Workers? Similar language is contained in 9 FAM 402.9-2 for E Visas, despite the fact that an E-2 visa holder is only required to develop and direct a U.S. business operation (or be an executive/supervisory position or possess essential skills for the operations). The E-2 visa requires a “real and active commercial or entrepreneurial undertaking, producing some service or commodity” that has “the present or future capacity to generate enough income to provide minimal living for the treaty investor and his/her family,” but there’s no requirement to hire U.S. workers, or to pay U.S. workers a certain wage. Our firm has recently encountered more difficult consular officers in adjudicating E visas. Will this change in the FAM result in consular officers requesting information on the type of employees hired or to be hired by the E-2 enterprise?
- Issues for Employment-Based Immigrant Visas. Likewise, 9 FAM 502.4 now refers explicitly to President Trump’s Executive Order on Buy American Hire American and states “it is with this spirit in mind that employment-based immigrant visas be adjudicated.” Notably, visa applicants with approved I-140 petitions for aliens with on extraordinary ability or for certain multinational executives or managers do not require a consideration of U.S. workers for eligibility. It is possible that the processing of immigrant visas may also be slowed down, should consular officers expect visa applicants to demonstrate how employment rates and wages for workers in the U.S. are affected.
- Nonimmigrant Intent for F-1 Student Visa Holders. We previously blogged about the problems that some foreign students are having to obtain a nonimmigrant F-1 visa when applying at a U.S. consular post if an EB-5 visa has been filed by the student or his family and the issue of “present intent” versus “future intent.” Nonimmigrants are likely to face similar scrutiny moving forward, as 9 FAM 402.5-5(E)(1) now reads:
Examining Residence Abroad: General rules for examining residence abroad are outlined in 9 FAM 401.1-3(F)(2). If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b). To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT. The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT.
This change would seem to prevent a potential F-1 visa applicant from lining up work in the U.S. after a degree is obtained, especially for those who would other want to extend their F-1 status through an H-1B “cap-gap” bridge.
- Issuance of EB-5 Immigrant Visas. Though unrelated to President Trump’s stance on immigration, 9 FAM 502.4-5(C) now explicitly states that consular officers “must cease issuing visas under [the EB-5 Regional Center Program] after close of business on September 30, 2017.” As of today, and unless U.S. Congress acts to extended it, the EB-5 Regional Center Program is set to sunset on September 30, 2017. Accordingly, even if an immigrant investor has an approved Form I-526 petition, he/she and his/her derivative beneficiaries will not be able to obtain an EB-5 visa from a consular office based on his/her EB-5 investment, unless it can be somehow demonstrated that the immigrant investor also meets the requirements for a “direct” EB-5 project. This is particularly troublesome for EB-5 investors from mainland-China who are stuck in the EB-5 visa backlog. The EB-5 industry must work together to extend the EB-5 Regional Center Program to ensure these investors are not stuck outside the U.S.