It's Getting Harder for European Workers to Obtain U.S. Visas
A seeming change in policy has left companies scrambling.
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Businesses and employees applying for U.S. visas at U.S. consular posts are finding the post-Trump world a different and difficult place to navigate. Heightened visa screening and vetting standards are critical to President Trump's megaphone immigration policy. But, in terms of how the President's policies are being applied to applications, detail is very thin on the ground and often changes on a whim. Applications that would have previously been granted without question are being refused or just disappearing into a black hole, and changes to policy are being implemented without any warning or notice.
The President's Buy American, Hire American Executive Order (BAHA) issued in April 2017 is likely the biggest culprit behind the heightened level of discretion being exercised by visa officers. Although Department of State officials have publicly stated that officers have not received any implementation guidance for the new BAHA initiative, it is clear to many businesses that are sending workers to apply for visas that the spirit of BAHA is in full effect.
One example involves an essential employee for a British company who applied for an E-2 employee visa pursuant to the company's approved registration at the U.S. Embassy in London. The company planned to send the employee to temporarily work at their office in the U.S., as the employee had critical knowledge of the company's products and processes. Normally this would be a straightforward and easily approvable application; however this time the employee was grilled at length and told he was not essential; the officer declared that an American could easily do the job and the visa was denied. There are dozens more stories of denials with almost identical facts.
In the past, non-immigrant visa applications submitted by European workers in European countries were generally considered "less risky" (unlike locations where denial rates have traditionally been higher, such as the Consulates in India). Companies could take comfort in their long-standing track records of immigration successes. Now? Every application submitted leaves the applicants and their employers, even in Europe, holding their breath in suspense. This new unpredictability is putting a significant strain on employers who need European talent in the U.S., and is ultimately harming the U.S. businesses who cannot find local workers to fill the positions.
The Embassy in London also became a topic of conversation last year among those in the U.S. immigration law community due to its treatment of applicants applying for visas based on their extraordinary ability. These were artists, entertainers, musicians and other people with talent so extraordinary that U.S. Citizenship and Immigration Services (USCIS) had already approved their petitions. They needed only to clear the last hurdle of the visa application, which historically had been an administrative step. However, the Embassy began denying the applications and recommending that USCIS revoke the already-approved petitions, a process that can take more than a year to complete. The reason? The officer simply didn't think they were extraordinary enough. The alarming increase in these denials left immigration lawyers scratching their heads and re-directing clients to other consular posts. It also meant U.S. companies who were desperate to have these extraordinary individuals move to the U.S. to start working, or in some cases return to previously existing employment, were left scrambling for alternatives.
In contrast to the cases where applicants are informed of the reason for denial, individuals who apply for visas are frequently not given a reason as to why their cases have been placed in "administrative processing," and with no specific timeline for resolution, they are stranded. These indefinite delays have serious repercussions for individuals unable to travel, and jobs and business contracts are left hanging in the balance. The administration's push for "extreme vetting" is likely to blame, but does not explain the lack of movement or communication once the case falls into the black hole. Cases can remain pending for months, even years, and the government's response to follow up inquiries is simply that the case is pending and there are no updates.
In the past it was relatively easy to identify cases that were likely to be put into administrative processing, such as an applicant with a common Middle Eastern name or education related to security-sensitive technologies. However, over the last year, we have seen an increase in cases stuck in processing with no identifiable reasons. Applicants from European countries are now regularly experiencing the delays of administrative processing, an issue not nearly as common under previous administrations.
To make matters worse, the President's extreme vetting promise has led to proposed changes to the visa application forms which, once implemented, will require visa applicants to disclose all social media identifiers, email addresses and phone numbers used in the last five years. Privacy concerns aside, immigration lawyers are concerned about the impact an applicant's failure to disclose an old email address could have on future admissibility to the U.S.
It does not take an immigration expert to spot the likelihood that the processing of all of this extra data will take more time, thus leaving applicants for visas no more certain of whether their cases will be approved or will fall into the black hole of administrative processing. Add to that the fact that Foreign Service officers are leaving the Department of State at a significantly increased rate, and one can only dread to think how long it may take to have a visa issued following administrative processing.
In this era of uncertainty, employers who wish to send workers to the U.S. must be better prepared and better represented. Lawyers working on these cases have their fingers on the pulse of the ever-changing immigration system and employers, especially those who may not have previously used immigration lawyers for their "straightforward" applications, may reconsider their policies.
The implications of a denied visa are huge -- not only will the applicant not be joining the U.S. company for the temporary assignment, but a denial of any kind will affect a person's ability to travel on the Visa Waiver Program (ESTA). As this program covers the majority of travelers from Europe entering the U.S. for business meetings and holidays, European companies may find that a cavalier attitude toward the work visa process leaves them with staff unable to even visit the U.S.
Many businesses and individuals are unaware of the difficulties they may now face when trying to secure visas and could see their businesses suffer significantly as a result. The obvious roadblocks are just that -- obvious. They have solutions, and good legal strategy can usually help an applicant over the hurdle. However it is the hidden, undisclosed and constantly changing roadblocks that should have employers and employees fearful that the Buy American Hire American policy may actually be working.