Buy American, Hire American. That’s the spirit.

24.06.2018
Jennifer Schear, Founding Partner of Schear Immigration Law Firm
On January 20, 2017, the Israeli and VC communities pushed the panic button. During the days and weeks leading up to, and following Trump’s inauguration, I received many an email from hysterical start-up CEO’s expressing concern about the impact of the new administration’s policies on their ability to secure U.S. work visas for key employees. Was this widespread panic justified? Yes and no. Despite the rumors and speculation, there have not been many substantive changes to the criteria or processes involved in obtaining work authorization for foreign nationals. What has changed is the spirit in which the current administration is relating to the issue of immigration in general, and the real effect that it is having on Israeli companies doing business in the United States.

The International Entrepreneur Parole (IER) established under the Obama Administration is a good example of how “times they are a changing” under the new administration. The IER grants certain foreign entrepreneurs special permission or “parole” to enter and work in the U.S. to grow their startups if the business has potential for rapid growth and job creation. Just days before IER’s effective date, the Department of Homeland Security (DHS) announced that its implementation would be postponed until March 2018. On December 1, 2017, the U.S. District Court for the District of Columbia vacated the delay rule following litigation in National Venture Capital Association v. Duke. At the time, this sounded like the greatest news ever – one more option for Israeli entrepreneurs to work legally in the U.S. (yay!) but there is a catch. DHS is in the final stages of publishing a notice of proposed rulemaking seeking to remove the IER altogether. My advice to hopeful entrepreneurs? Don’t bother applying under the IER, because you could have the rug pulled out from under your feet without prior notice. If, and when the IER is rescinded, work authorization could be revoked along with it.

Perhaps the most disturbing trend in the world of Trump-era immigration, is the way work visa petitions and applications for foreign highly skilled workers are being adjudicated. Don’t get me wrong, obtaining U.S. work authorization has never been a walk in the park, even for the best and the brightest. That said, we’re seeing increased scrutiny of almost all types of nonimmigrant visa classifications following the implementation of the “Buy American, Hire American” Executive Order intended to protect the interests of U.S. workers and combat fraud in the immigration system. So how does this play out in the context of perhaps the most widely utilized visa classification? Here are some real-life examples of how Trump’s immigration policies are affecting Israeli high-tech companies and their employees in the context of the L-1 visa for the intra-company transfer of executives, managers and specialized knowledge workers:

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  • L-1A Executives and Managers – There has been a marked increase in USCIS requests for additional evidence (RFE), especially within the scope of L-1A extension requests for both new offices and established companies. RFE’s relating to managerial and executive capacity are now focusing on both the number of employees managed, and the complexity of the organizational hierarchy in general. Example: CTO transfers on L-1 visa to establish and oversee a new U.S. subsidiary. During the first year of operations, the CTO hires four subordinate managers. Within the context of the L-1 extension request, if those subordinate managers are not themselves managing others, USCIS may claim that the CTO is not functioning in a managerial capacity.
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  • No Deference to Previous Petition Approvals – Since 2004, USCIS’ policy on adjudicating L-extension requests has been to give deference to previous petition approvals (i.e. consider approving the extension request if the underlying facts have not changed). Following a policy memorandum issued in late 2017 which rescinded this policy, USCIS is now in effect re-adjudicating each and every extension request. According to the 2017 memo: “USCIS is also providing updated guidance that is both more consistent with the agency’s current priorities and also advances policies that protect the interests of U.S. workers”. Example:  Engineer has been working in the U.S. on the basis of an L-1B visa for specialized knowledge workers for the past three years. Extension request is submitted with no material changes. USCIS issues a 10-page request for evidence requesting clarification on how the employee acquired specialized knowledge of the company’s technology during the 12 months she was employed at the R&D center in Israel before transferring to the U.S., and how she is implementing such specialized knowledge within the scope of her U.S. employment.
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  • More Surprise Site Visits/Weird Questions – Unannounced site visits by USCIS’ Fraud Detection unit are not a new phenomenon for L-1 employers. Since 2010, the USCIS Fraud Detection and National Security (FDNS) unit has conducted surprise site visits for L-1, H-1 and R-1 employers to verify that information contained in a previously submitted petition is accurate. In addition to a significant increase in number of surprise site visits being conducted, we have received numerous reports from clients indicating that they were asked unusual questions during the site visits. Example: USCIS comes knocking at the office in New York to visit the CEO of cyber security company working on the basis of an L-1 visa. FDNS officer asks the following question: “Theoretically – if you had to imagine that the company needed to hire someone to replace the CEO - what’s the set of skills that such a person would need?” CEO responds: “This is an impossible scenario to imagine for the CEO and founder of a [hitech] Company”.
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  • Significant delays in EAD processing for L-2 spouses – The 90-day rule for processing of Employment Authorization Documents (EAD) was eliminated in January 2017. A year later, USCIS processing times for EAD’s have now reached 4-7 months on average (!). Elimination of the 90-day rule is affecting all EAD categories and has become cause for concern for eligible dependent spouses seeking to apply for or extend their work authorization.
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At the risk of sounding overly dramatic, the above examples are only the tip of the iceberg when it comes to the impact of Trump’s policies on corporate immigration. USCIS has stated that it intends to continue to work on a combination of rulemaking, policy memoranda, and operational changes to implement the Buy American and Hire American Executive Order. As such, companies are strongly advised to initiate work visa processes for employees as early as practicable to allow time for delays resulting from implementation of strict policies and increased scrutiny under the current administration. 


Jennifer Schear is the Founding Partner of Schear Immigration Law Firm, a boutique immigration firm in Tel-Aviv. SI represents Israeli and foreign corporations ranging from Start-Ups through public traded entities in securing work authorization for key personnel. SI works closely with local hi-tech accelerators and incubators and the international venture capital community with regard to corporate immigration issues and compliance strategies.