On April 18, 2017 President Trump signed the Buy American and Hire American (BAHA) Executive Order. The goal of BAHA is to strengthen the U.S. economy by protecting the interests, wages, and employment of U.S. workers through rigorous enforcement and administration of immigration laws. If you are considering applying for a nonimmigrant visa, it is important to know exactly what BAHA is, how it impacts your L, E, H, or O visa petition, and ways you can position your petition for a more favorable adjudication post-BAHA.
What is the Buy American and Hire American (BAHA) Presidential Executive Order?
Section 2 on policy of the BAHA Executive Order states the following:
(a) Buy American Laws. In order to promote economic and national security and to help stimulate economic growth, create good jobs at decent wages, strengthen our middle class, and support the American manufacturing and defense industrial bases, it shall be the policy of the executive branch to maximize, consistent with law, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States.
(b) Hire American. In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).
To implement these policies, Section 5, “Ensuring the Integrity of the Immigration System in Order to ‘Hire American,’” of BAHA states that:
“the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”
How Does BAHA Impact Nonimmigrant Visa Petitions?
After reading the policy and enforcement of BAHA, it is no surprise that after two years of being implemented, we are currently seeing the practical impact and multiple challenges of this executive order in the adjudication of nonimmigrant visa petitions by immigration and consular officers, who might differ in the interpretation of BAHA. And since L, E, H, and O visas are now being evaluated through the lens of BAHA, it is important to use appropriate language in your nonimmigrant visa petition to mitigate those differences in interpretation.
For example, consular and immigration officers under the purview of BAHA will further question and deeper analyze the reasons behind why the company is hiring foreign workers over American workers. Likewise, officers will want to understand why your use of foreign talent is justified over the use of American talent. It is thus important to work with your business immigration attorney pre-petition in order to strategize and identify any possible challenges to the logistics of your operations that may be presented in light of BAHA.
How Can You Place Your Nonimmigrant Visa Petition for a More Favorable Adjudication Post-BAHA?
To temper any challenges posed by BAHA, a petition that includes a carefully drafted, in-depth analysis of how a company is going to create American jobs and help strengthen the U.S. economy will be more likely to receive favorable adjudication. For example, over-documenting and presenting strong evidence to show that an L or H applicant will not cause any U.S. employees to be fired, or specifically stating that E investors will hire locally, will strengthen the argument in favor of the applicant. In addition, U.S. employers, foreign applicants and investors should prioritize the hiring of U.S. personnel; adequately describe the qualifications, skills, and talent of the foreign applicant and abundantly support your claims; and buy from U.S. suppliers, manufacturers, and companies, among other matters specific to your case.
BAHA has changed the way officers review the non-immigrant and investor visa petitions. While applicants can state that they satisfy the BAHA requirements, immigration officers are now trained to scrutinize each case in order to make sure that the applicant will in fact strengthen the US economy and create, not displace, American jobs. This is why employers, foreign applicants and investors must dedicate more time and resources to incorporating the spirit of BAHA in both their operations and petitions. Demonstrating a Buy American, Hire American approach to immigration will thus lead to a more favorable adjudication.