US visa interviews now ask Indian professionals: 'Why can't an American do this job?'

A challenging question is catching many Indian professionals off guard during their U.S. work visa interviews. Applicants are increasingly being asked: "Why can't an American do this job instead of you?"

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There are questions that I see coming up more and more as I debrief clients from visa refusals and these questions recall the “Buy American and Hire American” executive order from the prior Trump Administration.

Immigration attorneys report this query is surfacing more often for H-1B, L-1B, and other employment-based visas, especially for those in the tech, consulting, and IT services industries. Some lawyers see this as a sign of renewed scrutiny at U.S. consulates, echoing the stricter immigration policies of the Trump administration. In 2017, President Trump's "Buy American, Hire American" executive order aimed to prioritize American workers.

Candidates typically prepare to detail their qualifications and specialized expertise. However, many struggle to articulate why they are uniquely suited for a role when a similarly qualified American could potentially perform the same tasks. This question is particularly concerning for L-1B and E-2 employee visa applications, according to business immigration attorney James Hollis of McEntee Law Group.

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Why can’t an American do this instead of you?

Hollis explained that U.S. immigration law does not explicitly require applicants to prove they are a better choice than a U.S. worker. The challenge arises because consular officers have significant discretion in determining the necessity of transferring an overseas employee. Applicants may face visa refusals if they are unprepared for this question or cannot clearly explain their unique qualifications.

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I am most concerned about the question: Why can’t an American do this instead of you? in L-1B and E-2 employee visa application contexts.

To mitigate the risk of rejection, immigration lawyers advise applicants to be ready to address this specific question, emphasizing their specialized skills and the necessity of their transfer to the U.S. The underlying issue appears to be the consular officer's interpretation of the "necessity" for the transfer, rather than a strict legal requirement for the applicant to outperform American candidates.

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The reason this question catches applicants and even lawyers off guard is because the immigration law doesn’t ask whether it would be better for a US worker to do the job instead of the person applying for the visa.