On January 25, 2021, President Joe Biden signed the Executive Order entitled “Ensuring the Future Is Made in All of America by All of America’s Workers” otherwise known as “BAHA”. This order revoked the “Buy American and Hire American” executive order, which President Trump executed for the purpose of protecting U.S. workers, promoting job growth, and protecting the integrity of the U.S. immigration system.
Earlier, the BAHA executive order prompted several federal agencies to issue numerous policy memos resulting in substantial changes to the adjudication standards for certain immigration benefits. Under the goal to “help advance policies that protect the interests of U.S. workers, ” many employers experienced challenges for normal H-1B extension of stay petitions approved for workers who were already in the United States in addition to challenges related to job modifications with other petitions. These policy changes under the BAHA executive order resulted in an overall increase in H-1B denials and requests for evidence (RFE) that often required great documentation that employers found time-consuming and burdensome.
Other positive news for H-1B employers relates to computer programmer positions as the USCIS announced the rescission of a 2017 ‘Computer Programmer Memorandum’ that raised questions about whether computer programmers qualified for H-1B specialty occupation visas. Prior to the Memo in 2017, the USCIS concluded that the position of a computer programmer is a specialty occupation as the majority of positions required a bachelor’s degree whereas some did not the subsequent restrictive Computer Programmer Memorandum resulted in denials of most computer programmer positions imposing a strict scrutiny standard. This Memorandum disqualified the Computer Programmers occupation as a specialty occupation.
With the revocation of the ‘BAHA’ Executive Order and the rescission of the 2017 ‘Computer Programmer Memorandum, employers and nonimmigrant workers can be hopeful for the newer policies of the Biden administration that welcome immigrants especially the skilled and highly educated. We, at the Emandi Law Firm, will keep you posted with further updates.