A growing number of Indian professionals applying for work visas in the US are faced with a question that many do not expect in visa interviews: “Why can’t a US citizen do this job for you?”According to immigration attorneys, this question is frequently asked in interviews for H-1B, L-1B, and other employment-based visas, especially for workers in the technology, consulting, and IT services sectors.
Some lawyers say this trend is consistent with the tougher approach to immigration seen during US President Donald Trump’s first administration.In 2017, Trump signed the “Buy American, Hire American” executive order, directing U.S. agencies to propose measures aimed at preventing immigration fraud and abuse while ensuring that H-1B visas are only awarded to the most skilled or highest-paid applicants.Many immigration lawyers now say they are seeing signs of renewed scrutiny of U.S. consulates.According to American Bazaar, business immigration attorney James Hollis of McEntee Law Group said, “There are questions I see coming up more and more as I question clients about visa denials, and these questions are reminiscent of the ‘Buy American, Hire American’ executive order from the previous Trump administration.”Among these questions, one question in particular has become a stumbling block for many applicants.“Why can’t an American do this for you?”Candidates often prepare to discuss their qualifications, work experience, and specialized expertise.
But many have difficulty explaining why they are uniquely suited to a job when a similarly qualified American worker can do the same job.Hollis said the question is particularly troubling for some visa categories.“What worries me most is the question: Why can’t an American do this for you?” In the 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 that they are a better choice than an American worker.He explained why this question is a double-edged sword: “The reason this question surprises applicants and even lawyers is that immigration law does not ask whether it would be better for an American worker to do the job rather than the person applying for the visa. Categories L and E have no limits on the number of employees who can be transferred to the United States from abroad. So, the system itself sets limits in the form of USCIS interviews and visa interviews.”
In this case, the limit is the extent to which the consular officer believes the transfer is truly necessary.According to Hollis, visa officers are free to decide whether a foreign employee actually needs to be transferred to the United States. As a result, some applicants face visa denial because they are not prepared for the question or cannot 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 early.“(Lawyers should) prepare their clients to explain what is unique about their work before the interview so they are prepared to defend themselves if that question comes up.”He also recommended that applicants focus on identifying aspects of their experience that are difficult to imitate.“It’s also a good idea to have them identify what knowledge, experience and relationships they have that the American worker doesn’t have,” he adds.Meanwhile, Hollis warned that repeated visa interviews could increase exposure to a system that is becoming more stringent.“But also try to limit the number of interviews this type of applicant has in the next three years. The system overcorrects, and if you can avoid your client getting into that situation, so much the better.”Hollis said Indian and Chinese citizens, especially those working in large consulting firms and IT contracting firms, face scrutiny.“It appears that arbitration standards are becoming more stringent for Indian and Chinese nationals in general. Specifically, I will always be more interested in L-1Bs and H-1Bs for large IT contractors and consulting firms.”He noted that some factors that influence a visa decision, including company-specific data, salary levels, and observation of the employer’s use of the visa, are beyond the applicant’s control.
However, candidates can still improve their chances by ensuring they fully understand their role and their supporting documentation.“In some cases, there won’t be much an applicant can do on their own because part of the analysis will be the number of applicants from that type of company, the salary for the job, and other details that they likely have no control over,” he said. “There will be background guidelines at consulates telling them what to scrutinize further. In this case, my general recommendation is to make sure the documentation is clear and accurate and that they understand it and are prepared to explain what they intend to do in the U.S., where they will be working and why/how they are qualified.” Specifically targeted for this role based on their background.
Fraud in particular is a major concern in India, so the more effort applicants make to appear knowledgeable and confident about the details of the job, the better they will put themselves in position.
