What is BAHA and How Does it Affect Me as an Immigrant?

baha

On April 18, 2017, President Trump signed the Buy American Hire American Executive Order (BAHA). BAHA is aimed at protecting the interests of American workers by seeking to create higher wages and employment rates and by generally protecting their economic interests through vigorous constriction of U.S. immigration at all levels.

Under BAHA, all interested agencies are directed to implement the President’s directive through an aggressive combination of rulemaking, policy memoranda and operational changes. Interested agencies include, but are not limited to, Citizenship and Immigration Services, Department of State, Department of Justice, and Department of Labor.

Since BAHA was announced, USCIS has taken up the mantle with the following impactful BAHA initiatives:

  • Continuous heavy rollout of its E-Verify for employers messaging and free webinar series to educate employers on how to reduce hiring of illegal workers through the use of E-Verify.
  • Stepped-up worksite enforcement efforts with a combination of increased worksite raids and higher penalties being demanded when violations are found.
  • Establishment of Fraud and Abuse Prevention Hotlines and Emails for the H-1B and H-2B Visa Programs with a generous advertising budget to inform the public.
  • Expanded information sharing with other agencies by entering into several Memorandums of Understanding with the Departments of State, Labor and Justice.
  • Enhancing the current site visit program to include L-1B Visa programs in addition to H-1B and H-2B.
  • Increased transparency with regard to employers who hire foreign nationals and their employees through the publication of extensive H-1B data set information, including information such as gender, country of birth, types of specialty occupations being requested, approval rates, including for change of status, extensions and characteristics of beneficiaries who changed status from F-1 to H-1B. H-2B and EAD data set reports were also added to USCIS’ publication list.
  • Issuance of several policy memoranda reversing long-standing previously existing policy and/or adding new, more restrictive policy interpretations where none existed previously, including:

Contracts and Itineraries Requirements for H-1B Petitions Involving Third Party Worksites https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-02-22-PM-602-0157-Contracts-and-Itineraries-Requirements-for-H-1B.pdf

L-1 Qualifying Relationships and Proxy Votes https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-12-29-PM-602-0155-L-1-Qualifying-Relationships-and-Proxy-Votes.pdf

TN Nonimmigrant Economists Defined by Qualifying Business Activity https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-1120-PM-602-0153_-TN-Economists.pdf

Recission of Guidance regarding Deference to Prior Determinations of Eligibility in Adjudication of Petitions for Extension of Nonimmigrant Status https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-23Rescission-of-Deference-PM6020151.pdf

Definition of Affiliate or Subsidiary for purposes of Determining the H-1B ACWIA Fee https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-8-9-PM-602-0147-H-1BAffiliateSubsidiary.pdf

The changes above refer only to USCIS’ participation in the BAHA initiative. Many more changes have been undertaken by other agencies which seek to curtail U.S. immigration and it is beyond the scope of this post to mention all.

The take away is that immigrants to the U.S. from all walks should be aware of BAHA and its far reaching implications because it has the clear potential to make the U.S. immigration process much more difficult for everyone, from the most highly skilled-workers, to global investors, to the undocumented.