The Department of State Revises the Foreign Affair Manual to Provide Consular Officers Guidance in light of Trump’s “Buy American and Hire American” Executive Order

By Roujin Mozaffarimehr

As of August 2017, the Department of State (DOS) has updated its Foreign Affairs Manual (FAM), which details the policies and procedures by which Consular Officers are to follow in the issuance of visas at appointments abroad. These revisions have been made based upon President Trump’s April 2017 Executive Order (EO) 13788, “Buy American and Hire American.” This EO posits targeted directives with the goal of “ensure[ing] the integrity of the Immigration System in order to ‘Hire American.”

Prior to the FAM revisions and the April 2017 EO, the Immigration Bar and non-immigrant visa (NIV) holders traveling abroad have been gathering anecdotal evidence of rigorous adjudications at the consulate. There were no policy memoranda or comparable guidance in place that required higher scrutiny or more rigorous review of visa applications before. With this EO and now the revisions in the FAM, more rigorous standards and higher levels of scrutiny have been formalized into guidelines to the Department of State and are now legally in effect. These guidelines though are still somewhat ambiguous and thus ImmiCore Law will be vigilantly monitoring how their implementation unfolds.

We have highlighted the relevant guidelines below:

• The following language has been added to the overview sections for H, L, O, and P visas: On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(H) must be adjudicated. 
• The following addition has been added to the overview section for E visas at 9 FAM 402.9-2: On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.  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.  It is with this spirit in mind that cases under INA 101(a)(15)(E) should be adjudicated. 
• The following language has been added and revised in the employment-based IV classifications overview section at 9 FAM 502.4-1: On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that employment-based immigrant visas be adjudicated.  
• The following language has been added and revised in the F-1 student visa holders section at 9 FAM 402.5-5(E)(1) : a. (U) INA 101(a)(15)(F)(i) requires that an F-1 applicant possess a residence in a foreign country he or she has no intention of abandoning.  You must be satisfied that the applicant intends to depart upon completion of the approved activity.  Consequently, you must be satisfied that the applicant, at the time of visa application:
  1. o(1)  (U) Has a residence abroad;
  2. o(2)  (U) Has no immediate intention of abandoning that residence; and
  3. o(3)  (U) Intends to depart from the United States upon completion of approved activities.

401. (U) Examining Residence Abroad:  General rules for examining residence abroad are outlined in 9 FAM 401.1-3(F)(2). If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b).  To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT.  The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT. 

In line with recent trends we have observed at consulates abroad over the last year, we expect that there will be stricter adjudications of NIV applications for both students and workers. This includes officers taking a closer look at an applicant’s position, credentials, job duties, salary, and immigrant intent in the case of F-1 student visa applicants.

The issues that NIV applicants are likely to face require preparation and strategizing. We advise that you make travel plans accordingly with your counsel to ensure that you are best prepared for your visa appointment. We are monitoring adjudication trends at consulates across the globe very closely and will provide updates.