A growing number of Indian professionals applying for US work visas are facing a question that many do not expect in their visa interviews: “Why can’t an American do this job for you?”According to immigration lawyers, this question is being asked more frequently in interviews for H-1B, L-1B and other employment-based visas, especially for workers in the technical, consulting and IT services sectors. Some advocates say this trend is in line with the tough approach to immigration seen during the first administration of US President Donald Trump.In 2017, Trump signed the ‘Buy American, Hire American Executive Order’, directing US agencies to propose measures aimed at preventing immigration fraud and abuse, as well as ensuring that H-1B visas are granted only to the most skilled or highest-paid applicants.Many immigration lawyers now say they are seeing signs of renewed scrutiny at U.S. consulates.According to American Bazaar, James Hollis, a business immigration attorney at McEntee Law Group, said: “When I brief clients about visa denials, I see these questions coming up more and more, and these questions are reminiscent of the former Trump administration’s “Buy American, Hire American” executive order.”One of those questions in particular has become a major stumbling block for many applicants.“Why can’t an American do this in your place?”Candidates often prepare to discuss their qualifications, work experience and specific expertise. But many people find it difficult to explain why they are uniquely suited for that role when an equally qualified American worker could do the same job.Hollis said the question relates specifically to certain visa categories.“I’m most concerned about this question: Why can’t an American in your place do this?” In L-1B and E-2 employee visa application contexts.He explained that the challenge lies in the fact that immigration law does not require applicants to prove that they are a better option than a US worker.He explained the reason why this question can be a double-edged sword: “This question bothers applicants and even lawyers because immigration law does not ask whether it would be better for a US employee to do the job rather than the person applying for the visa. There are no limits on the number of workers in the L and E categories who can be transferred to the US from abroad. Therefore, the system itself creates limits in the form of USCIS and visa interviews. In this case, the limit is the extent to which the consular officer considers the transfer actually necessary.According to Hollis, visa officers have the freedom to decide whether a foreign worker actually needs to transfer to the US. As a result, some applicants face visa refusal because they are unprepared for the questions or cannot clearly explain what makes them uniquely qualified for the role.
What advice do immigration lawyers give to applicants?
To reduce the risk of rejection, Hollis advises applicants and their attorneys to start preparing for interviews well in advance.“(Lawyers) should prepare their clients before the interview to explain what is special about their work so that they will be prepared to defend themselves when the question comes up.”He also recommended that applicants focus on identifying aspects of their experience that are difficult to duplicate.“It’s also a good idea,” he adds, “to recognize them for the knowledge, experience and connections they have that an American employee wouldn’t have.”At the same time, Hollis warned that repeated visa interviews could increase the risk of a system that has become more stringent.“But also try to limit the number of interviews these types of applicants undergo over the next 3 years. The system is improving a lot, and if you can keep your client from getting stuck in it, all the better.”Hollis said Indian and Chinese nationals, especially those working in large consulting firms and IT contracting companies, are facing a tough test.“In general, adjudication standards for Indian and Chinese nationals seem to be tightening. In particular, I am always most concerned about L-1B and H-1B for IT contracting companies and large consulting companies.”He said some factors influencing the visa decision, including company-specific data, salary levels and information on the employer’s visa usage, are beyond the applicant’s control. However, candidates can still improve their chances by ensuring that they fully understand their role and supporting documents.He said: “In some cases, there’s not going to be much that an applicant can do on their own because part of the analysis will be the number of applicants from the company for that type, the salary for the role, and other details that they may not have control over. Consulates will have guidance in the background that will tell them what to do especially the more higher scrutiny. In that situation, my general recommendation is to make sure that the documentation is clear and accurate and that they understand it and that they are prepared to explain what they are doing in the US. intend to do, where they will work and why/how they are specifically qualified for the role based on their background. ‘Fraud is a significant concern in India in particular, so the more knowledgeable and confident applicants appear to be about the details of the role, the better position they will put themselves in.’