Increasingly, Indian professionals applying for U.S. work visas are faced with a question that many don’t expect during their visa interviews: “Why can’t an American do the job for you?”According to immigration attorneys, this question is asked more frequently during interviews for H-1B, L-1B and other employment visas, especially for workers in the technology, consulting and IT services industries. Some lawyers say the trend is consistent with stricter measures on immigration during the first administration of U.S. President Donald Trump.As early as 2017, Trump signed the “Buy American, Hire American” executive order, directing U.S. agencies to propose measures aimed at preventing immigration fraud and abuse while ensuring that H-1B visas are only issued to the most skilled or highest-paid applicants.Several immigration lawyers now say they are seeing signs of renewed scrutiny at U.S. consulates.“As I report visa denials to clients, I see more and more issues arise that are reminiscent of the previous Trump administration’s ‘Buy American, Hire American’ executive order,” said James Hollis, a business immigration attorney at McEntee Law Group, according to American Marketplace.Among these issues, one in particular has become a stumbling block for many applicants.“Why can’t Americans do this for you?”Candidates are often prepared to discuss their qualifications, work experience and expertise. But many find it difficult to explain why they are particularly qualified for the position when equally qualified American workers can do the same job.Hollis said the issue was particularly concerning in certain visa categories.“My biggest concern is: Why can’t Americans do this for you?” in L-1B and E-2 employee visa applications.The challenge, he explained, is that immigration law itself does not require applicants to prove they are a better choice than American workers.He explains why this question can be a double-edged sword: “The reason this question catches applicants and even lawyers off guard is that immigration law does not ask whether the job would be better done by a U.S. worker rather than the person applying for the visa. The L and E categories have no limits on the number of employees who can be transferred to the U.S. from abroad. Therefore, the system itself places limits on immigration and the format of the visa interview. In this case, the limit is the extent to which the consular officer deems the transfer to be truly necessary. “Hollis said visa officers are free to determine whether an overseas employee truly needs to relocate to the United States. As a result, some applicants face visa rejection because they are not prepared to answer this question or cannot clearly explain what makes them uniquely qualified for the position.
What advice would an immigration attorney give to an applicant?
To reduce the risk of rejection, Hollis recommends that applicants and their attorneys begin interview preparation early.“(Lawyers should) ask their clients to explain what is special about their job before the interview so they are prepared to defend themselves if the question arises.”He also advises applicants to focus on aspects of their experience that are difficult to replicate.“It’s also a good idea,” he added, “to make them realize that they have knowledge, experience and connections that American workers don’t have.”At the same time, Hollis warned that frequent visa interviews could increase the risk of exposure to a system that becomes more restrictive.“But also try to limit the number of interviews these types of applicants have over the next three years. The system is overkill and if you can avoid your clients falling into it, all the better.”Hollis said Indian and Chinese nationals, particularly those employed by large consulting firms and IT contracting firms, were facing increased scrutiny.“In general, the adjudicatory standards for Indian and Chinese nationals appear to be getting stricter. Specifically, I am most concerned about L-1B and H-1B for IT contracting companies and large consulting firms.”He noted that some factors that influence visa decisions, including company-specific data, salary levels and employer notification of visa usage, are beyond the control of the applicant. However, candidates can still improve their chances by ensuring they fully understand their role and supporting documentation.He said: “In some cases there is not much the applicant can do on their own as part of the analysis will be the number of such applicants at the company, the salary for the position and other details that they may not have control over. There will be guidance from the consulate’s backend telling them that they specifically need more rigorous scrutiny. My general advice in such cases is to make sure the documentation is clear and accurate, that they understand and are prepared to explain what they intend to do in the US, where they will work and why/how they are particularly suitable for the position given their background. Fraud is a serious problem in India in particular, so the more an applicant can demonstrate knowledge and confidence in the details of the role, the better position they will be placed. “
