Media365
A growing number of Indian professionals applying for US work visas are being confronted with a question many do not expect at their visa interviews: “Why can’t an American do this job instead of you?”According to immigration attorneys, the question is being asked more frequently in interviews for H-1B, L-1B and other employment-based visas, particularly for workers in tech, consulting and IT services sectors. Some lawyers say the trend aligns with the stricter approach to immigration seen during US President Donald Trump’s first administration.Back in 2017, Trump signed the ‘Buy American, Hire American executive order’, directing US agencies to propose measures aimed at preventing immigration fraud and abuse while ensuring that H-1B visas were only given to the most-skilled or highest-paid applicants.Several immigration lawyers now say they are witnessing signs of renewed scrutiny at US consulates.According to the American Bazaar, business immigration attorney James Hollis of McEntee Law Group said: “There are questions that I see coming up more and more as I debrief clients from visa refusals and these questions recall the “Buy American and Hire American” executive order from the prior Trump Administration.”Among those questions, one in particular has become a stumbling block for many applicants.“Why can’t an American do this instead of you?”Candidates often prepare to discuss their qualifications, work experience and specialised expertise. But many find it difficult to explain why they are uniquely suited for a role when a similarly qualified American worker could perform the same job.Hollis said the question is especially concerning in certain visa categories.“I am most concerned about the question: Why can’t an American do this instead of you?” in L-1B and E-2 employee visa application contexts.He explained that the challenge lies in the fact that immigration law itself does not require applicants to prove they are a better choice than a US worker.He explained the reason why this question might be a double-edged sword: “The reason this question catches applicants and even lawyers off guard is because the immigration law doesn’t ask whether it would be better for a US worker to do the job instead of the person applying for the visa. The L and E categories have no limit on the number of employees that may be transferred into the US from abroad. So, 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 thinks the transfer is truly necessary.”According to Hollis, visa officers have freedom when deciding whether an overseas employee really needs to be transferred to the US. As a result, some applicants face visa refusals because they are not prepared for the question or cannot clearly explain what makes them uniquely qualified for the role.
What do immigration lawyers advise applicants?
To reduce the risk of rejection, Hollis advises applicants and their attorneys to begin interview preparation well in advance.“(Attorneys should) Prep their clients to explain what is so special about their work before the interview so that they are ready to defend themselves if this question comes up.”He also recommended that applicants focus on identifying aspects of their experience that are difficult to copy.“It is also a good idea,” he adds, “to have them identify the knowledge, experience, and connections that they have that a US worker would not have.”At the same time, Hollis warned that frequent visa interviews may increase exposure to a system that has become more strict.“But also try to limit the number of interviews these types of applicants are doing in the next 3 years. The system is overcorrecting, and if you can avoid your client being caught up in it, all the better.”Hollis said Indian and Chinese nationals, particularly those employed by large consulting firms and IT contracting companies, are facing closer examination.“The adjudication standards appear to be tightening for Indian and Chinese nationals in general. Specifically, I am always going to be most concerned with L-1Bs and H-1Bs for IT contracting companies and for large consulting companies.”He noted that some factors influencing a visa decision, including company-specific data, salary levels and noticing of employer’s visa usage, are beyond an applicant’s control. 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 going to be much that an applicant can do on their own because part of the analysis is going to be the number of applicants of that type from the company, the salary for the role, and other details that they likely don’t have control over. There will be guidance in the background at the consulates telling them what in particular to more highly scrutinize. In that situation, my general recommendation is to ensure that the documentation is clear and accurate and they understand it and that they are ready to explain what they are intending to do in the US, where they will be working and why/how they are specifically qualified for the role based on their background. Fraud in particular is a significant concern in India, so the more that the applicants can do to appear knowledgeable and confident about the details of the role, the better position they will put themselves in.”
