In August 2017, the U.S Department of State revised the Foreign Affairs Manual (hereafter “FAM”), to reflect the letter and spirit of Executive Order 13788: “Buy American, Hire American” signed by President Trump on April 18, 2017.

The FAM is a comprehensive, authoritative text issued by Federal Government to Consular Officers, to enable them to adjudicate upon E-2 visa applications (and other immigrant/non-immigrant visa applications) within the relevant statutory framework.

As a result of the revisions, 9 FAM 402.9-2:Overview of E Visas now reads:

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse. You must also remember that the basis of this classification lies in treaties which were entered into, at least in part, to enhance or facilitate economic and commercial interaction between the United States and the treaty country. It is with this spirit in mind that cases under INA 101(a)(15)(E) should be adjudicated.

While, at first blush, the amendments do not appear to be controversial, it is likely the amendments will result in Consular Officers adopting a stricter interpretation of the E-2 visa requirements. It is likely E-2 employee visa applications will be more rigorously scrutinized in future, particularly, for example, when a proposed E-2 employee is related to the principal investor and has “aged out” of the derivative E-2 visa category.

At Davies Legal, we are concerned that a stricter approach to the adjudication of E-2 visa applications will result in the unfair denial of E-2 employee visa applications. Although the intention of Executive Order 13788 was to create higher wages and employment rates for U.S workers, the reality of the business world is such that investors require the flexibility to relocate foreign executive or supervisory employees (many of whom have a unique skillset and in-depth knowledge of the workings of the company) at relatively short notice, in order to maintain and promote the success of the business. Indeed, we are concerned that prospective U.S investors may be deterred from founding an E-2 enterprise, if there is no guarantee they will be able to take their successful management team to the US with them. E-2 investors facilitate economic growth in the US, by generating employment opportunities within local communities. If E-2 investors are deterred from investing in the U.S, the revisions to the FAM will undermine the very raison d’etre of Executive Order 13788.

At Davies Legal, we offer a “one stop shop” for all of your U.S business immigration needs. Our team of Attorneys, Masters of Business Administration and Certified Public Accountants offer a fully flexible service, tailored to the needs of your business. We offer a transparent fixed fee pricing structure and undertake to provide the highest standards of client care. Call now for a complimentary assessment of eligibility by telephone and for a free, no obligation quote.

Published: 4th September 2017