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Challenges for US work visas

13 November 2018
Nita Nicole Upadhye

US visa petitions across every classification are enduring increasing scrutiny by immigration authorities. Nita Nicole Upadhye, US immigration attorney and founder of London-based NNU Immigration and former chair of the EMEA-Rome District Chapter of the American Immigration Lawyers Association, shares insight into what this means for your clients looking to realise opportunities in the United States.

In Obama’s last full fiscal year in 2016, the US granted 10,381,491 non-immigrant visas to visitors. In 2017 that number had dropped to 9,681,913.

It’s not clear from the figures if the drop in the number of visas issued is as a result of fewer applications or more denials, or indeed both. However, in my day-to-day dealings with US Embassies in London and throughout Europe, it is clear that Consular officers are exercising greater discretion and interpreting the law in a narrow manner which is slowing processing times and creating greater uncertainty as to the expected outcome of applications.

A myriad of policies, taken together, are impeding legal immigration to the US.

One of the cornerstones of the policy is the ‘Buy American, Hire American’ Executive Order 13788 signed in April 2017, which directed the secretaries of state, Labor, and homeland security, as well as the attorney general, to propose new rules and issue new guidance to protect the interests of US workers.

Another notable new policy to highlight is the Department of Homeland Security Policy Memorandum PM-602-0163 titled ‘Issuance of Certain RFEs and NOIDs’ dated July 2018. By empowering examiners with full discretion to deny an application or petition for any reason without first issuing a Request for Evidence (RFE) or Notice of Intention to Deny (NOID), we are seeing already increased scrutiny of petitions hitting the next level.  

The changes have resulted in a higher rate of visa denials. Securing a visa to work in the US even temporarily is proving challenging for professionals across all industries and fields of expertise, with decision-making focused primarily on protecting jobs for US workers.

What does this mean for your clients?

The resulting uncertainty and lack of consistency is highly disruptive for businesses seeking to plan their global mobility and recruitment programs. The unstable nature of the process is impacting the attractiveness of the US for the entrepreneurial minded. For global companies seeking to continue doing business or to lay foundations in the United States, this is a deeply troubling time.

Non-immigrant employment petitions that two years, or even 12 months ago, would have been comfortably approved are now being challenged and, under PM-602-0163, face the very real risk of outright denial for minor application errors.

It’s an extremely tough period for US employment visa petitions, and we have to adapt our legal advice and approach to filing accordingly. Companies must be warned of longer timescales and greater costs for multinational companies operating in the US market.

Stress-testing visa petitions

The way in which we present petitions will need to specifically pre-empt, address and counter potential adjudicator objections to avoid RFE and NOID scenarios.

When building a petition, we need to be factoring in trends in decision-making across USCIS Service Centers, patterns in areas of objection, identifying scope for tolerances, and evidencing and over-documenting as thoroughly and meticulously as possible.

We must now assume a default position that the adjudicator is looking for reasons to challenge, not reasons to approve.

The question we are trying explicitly to answer with every petition is ‘Why can’t a US worker do this job?’ Always assume that there will be no benefit of the doubt given in favor of the applicant. The burden of proof rests on the applicant to a much higher degree than ever before.

Looking at some of the more popular US work visas, consider:

  • L-1 visa for intra-company transfers.
    Is the L-1A managerial employee really satisfying the requisite seniority level or will they actually be carrying out day-to-day functional duties? For L-1B employees, do they really possess specialized knowledge that is difficult to find in the US labor market? For L-1B cases in particular, employers should also consider testing the labor market by hiring recruiters to find qualified workers for the role.
  • E-1s and E-2s for Treaty Investors and Treaty Traders.
    Entrepreneurs should be looking to build a stronger case of substantial investment leading to job creation. It would be beneficial for the entrepreneur to undertake recruitment efforts in the United States prior to the submission of an employee E-2 application to demonstrate the intention to hire locally.
  • O-1 visas for 'Extraordinary ability'.
    Credible endorsements of the applicant are critical, such as letters from peers and others in positions of authority and influence, and contracts supporting relationships and responsibilities. Look closely at the reputation and recognition of the applicant. What would a Google search show about the applicant? Consider hiring a PR agent to increase their digital ranking and promote the achievements of the applicant prior to submission.

For multinationals, ambitious start-ups, skilled workers, investors and entrepreneurs, these changes in policy are becoming a significant barrier and it could be a long time before we see a reversal in the direction the US Government is taking.

Despite these barriers, there are many compelling reasons to pursue business opportunities in the United States. The business tax climate, cost of living, education opportunities for family members and the ecosystem for start-up companies are still robust. For companies, entrepreneurs and professionals who are determined, persistent and tactical, the barriers may be surmountable.