DOS Provides ‘Hire American’ and F-1 Guidance to Consular Officers

The U.S. Department of State (DOS) recently updated the Foreign Affairs Manual (FAM), which provides official guidance to consular officers, in light of the ‘Buy American, Hire American” executive order (EO) signed by President Trump on April 18, 2017. The DOS FAM update primarily serves to advise consular officers that certain classes of visas should be adjudicated in the spirit of the EO, with a clear focus to protect U.S. workers. The F-1 section was also updated in relation to the requirement that prospective foreign national students establish nonimmigrant intent to be eligible for the F-1 visa.

FAM Updates Related to H, L-1, and E-2 Visas

The section in the FAM related to the H visa category (e.g., H1B, H2A, H2B) has been updated with a reference to the ‘Hire American’ EO. The update notes that the purpose of the EO 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” H1B visa applications should be adjudicated. Similar language has been added to the sections pertaining to the L-1 and E-2 categories.

Update to F-1 Section Related to Residence Abroad Requirements

The section of the FAM pertaining to the residence abroad requirement for F-1 students was also updated. The FAM now specifies that “if [the consular officer is] not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, [the officer] must refuse the visa. … To evaluate this, [the officer] 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 [the officer is] satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT.”

Conclusion

These changes to the FAM are troubling, though consistent with recent trends at consular posts worldwide. The entire U.S. immigration system has long included protections for U.S. workers, fraud has always been prohibited, and F-1 students have always been required to establish nonimmigrant intent and maintain a foreign residence. It remains to be seen, however, how consular officers will implement these changes to the FAM.

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