An American Could Do the Job


On April 18, 2017, President Trump signed the Buy American and Hire American (BAHA) Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering our immigration laws. It also directs DHS, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.

The executive order also directs the federal government to fully enforce federal guidelines prioritizing the use of American firms and goods in federal projects. Both changes are aimed at discouraging the use of foreign labor, which the administration says displaces American workers and reduces wages.

Since the inclusion of a reference to the BAHA E.O. in the FAM with regard to various employment-based visa categories on August 9, 2017, there have been reports that visa applicants have been refused visas by consular officers who stated that the reason is because “an American could do the job.”

Regarding E-1 and E-2 Treaty Trader and Treaty Investor visas, an additional sentence was added to FAM: “You must also remember that the basis of this classification lies in treaties which were entered into, at least in part, to enhance or facilitate economic and commercial interaction between the United States and the treaty country.”

This new guidance suggests that consular officers will be called upon to judge what is in the economic interests of American workers and what will enhance economic growth. This reasoning is also speculatively being applied in E-2 and Blanket L cases where DOS have wider discretion on what’s specialized or essential.

The result of the application of this reasoning means that consular officers could arbitrarily deny such cases under 214(b) and there would be no recourse at the individual level.

About The Author

Elektra is the founder and principal attorney at The Law Office of Elektra B. Yao a full service, comprehensive immigration and general practice law firm. Ms. Yao is admitted to the New York Bar and she practices U.S. Immigration and Nationality law and Deportation Defense in all jurisdictions of the United States of America. Ms. Yao earned her Bachelor’s Degree in Communication Arts from Marymount Manhattan College in NYC in 2008 and earned her Juris Doctor from Lewis and Clark Law School, a nationally ranked, top-tier law school in 2011. In 2010, she studied in London under Loukas Mistelis, the Professor and Director of the School of Arbitration at the prestigious UK law school Queen Mary University. Ms. Yao also studied at the University of Beijing Law School, the leading Chinese law school, where she earned a Certificate in Chinese business and civil law; along with studying at the prestigious Sorbonne University in Paris, France and in Florence, Italy where she earned Certificates in Comparative Law. Ms. Yao was also invited to study Eastern European Law at Eotvos Lorand University, the best law school in Hungary. She has also completed all of the coursework for a Master’s in Law in European and Spanish Law from the University of Salamanca. She holds multiple Certificates in Italian and European Immigration Law and Policy. Ms. Yao spent several years working for leading boutique immigration law firms where she developed her expertise in employment based and family based immigration law. Ms. Yao is highly experienced and proficient in US and EU Immigration Law and Policy. As such, Ms. Yao has provided her immigration legal services to businesses and individuals in the US, Italy, Spain, and Cote d’Ivoire. Ms. Yao has lived, studied, and worked internationally in the US, the EU, and Africa and she is fluent in French, Italian, Spanish, and English.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.