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By Billal Rahman
Immigration Reporter
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Some H-1B visa applicants are being asked why a U.S. worker could not fill the positions they have been offered, immigration attorneys told Newsweek.
Attorneys say consular officers have recently been asking applicants variations of the question: "Why can't an American do this job instead of you?" The inquiries appear most common in specialty-occupation cases, where officers are probing the employer's reasons for hiring a foreign worker.
Under existing H-1B rules, employers must attest that hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
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The H-1B program allows U.S. employers to hire foreign workers in specialty occupations requiring specialized knowledge and, typically, at least a bachelor's degree or equivalent. It is widely used in technology, engineering and healthcare. Congress caps new H-1B visas at 85,000 annually, including 20,000 reserved for applicants with advanced degrees from U.S. universities.
Morgan Bailey, a partner at Mayer Brown and a former senior official at the Department of Homeland Security, told Newsweek she has seen this line of questioning "come up more frequently in consular interviews."
"Officers are increasingly asking H-1B applicants some variation of 'Why can't an American do this job?' or ‘What makes you so specialized that an American cannot do your job?’" Bailey said.
She added that similar questions appeared under prior administrations, but the "frequency and directness" now seem more pronounced.
Bailey said applicants should avoid sounding scripted and instead approach the interview the way they would a job interview, speaking "clearly, concisely, and confidently" about their education, specialized experience, and qualifications for the role.
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Why Applicants Are Being Asked the Question
Rather than comparing themselves to U.S. workers, Bailey said applicants should focus on why the employer selected them for the role.
She added that she encourages clients to treat the exchange as conversational and "interpret the question as one of genuine interest rather than to become defensive."
U.S. Citizenship and Immigration Services referred Newsweek to the State Department for comment, noting that H-1B interviews are conducted by consular officers at embassies and consulates overseas.
A spokesperson for the State Department told Newsweek: "Under President Trump, the U.S. is unapologetic in enhancing opportunities for our citizens and implementing America-first visa policies. Of course, we are working with partners to facilitate the visas necessary to encourage investment into the U.S.—which is at historic highs because of President Trump—but we will also ensure that Americans have access to opportunities and high-paying jobs to which they are qualified.
"That is a commonsense policy that is commonplace in almost every country around the world. Further, any visa applicant must prove their eligibility for the visa they are applying for, and businesses must justify the H-1B visa is necessary to fill the position. Our procedures are in line with those two standards."
Immigration attorney Gnanamookan Senthurjothi told Newsweek he has heard "isolated reports" of the question being asked at some recent H‑1B visa interviews, but said it does not yet appear widespread.
Senthurjothi said he had recently seen instances where "four applicants got the same question" in a single day.
"I am not seeing the question frequently enough to call it a trend," he said, adding that it appears "consistent with broader efforts by adjudicators and consular officers to understand the nature of the position, the beneficiary’s qualifications, and the employer’s rationale for hiring the individual."
Ellen Freeman, another immigration attorney, told Newsweek she regularly prepares clients to address the issue. "They have been asking that throughout the Trump administration—this is nothing new," she said.
H-1B Program Under the Microscope
The interview questions come amid broader efforts by the administration to tighten oversight of the H-1B program.
Long a flashpoint in debates over immigration and the labor market, supporters say the visa allows employers to recruit highly skilled workers, while critics argue some companies use it to suppress wages or replace American workers.
$100,000 Fee Challenge
In 2025, President Donald Trump signed an executive order imposing a $100,000 fee on new H-1B petitions, arguing the measure would help prioritize highly skilled, highly paid foreign workers while discouraging abuse of the visa program.
Business groups and immigration advocates quickly challenged the policy, arguing the administration lacked authority to impose the fee without congressional approval.
Earlier this month, a federal judge in Boston blocked the measure, ruling it amounted to an unauthorized tax. The administration has appealed.
Lottery Changes
The government also implemented a rule that would have replaced the random H-1B lottery with a wage-based selection process favoring applicants with the highest salaries.
White House Response
White House spokesperson Taylor Rogers defended the steep fee as part of an effort to prioritize U.S. workers, saying it aligns with Trump’s "America First" agenda.
Rogers told Newsweek: "The payment accompanying new H-1B petitions is a necessary condition on entry that protects the national interest and bolsters the purposes of the H-1B visa program.
"The $100,000 payment discourages companies from spamming the system and provides certainty to employers who actually need to bring the top-tier talent from overseas," he said*.*
The Current Law
Unlike some employment-based immigration categories, employers do not have to prove that no qualified American worker was available for the position.
Duden Freeman, a former State Department visa officer, said similar considerations have long informed how consular officers assess applications.
"When I did H‑1B interviews as a visa officer, I always had that question in mind—I would always try to determine why the job was specialized," Freeman said.
"Today, when I prep clients, I use a similar approach—and I ask them, ‘What makes you so specialized that an American cannot do your job?"
How Applicants Should Respond
Attorneys said H-1B visa applicants should avoid directly comparing themselves to U.S. workers when responding and instead focus on the nature of the role and their qualifications.
"When clients encounter a question such as, ‘Why can’t an American do this job instead of you?’ I generally advise them not to frame their answer as a comparison with U.S. workers," Senthurjothi said.
"Instead, they should focus on why they were selected for the position and how their education, experience, specialized skills, and prior work with the employer qualify them for the specific role being offered."
Immigration attorney Nandini Nair told Newsweek she advises applicants to explain that the role requires specialized knowledge, education, or experience, and that their background is a strong match for the employer’s needs.
"I remind clients that the H-1B process is about filling specialty occupation roles that require specific expertise—not about saying American workers are unqualified," Nair said.
"Their answers should align with what was submitted in the H-1B petition," she added.
At the same time, consular interviews are taking place against a backdrop of broader procedural changes.
Since December 2025, U.S. consulates have introduced expanded social media screening for H‑1B applicants, requiring officers to review applicants’ online presence as part of the adjudication process.
Attorneys said visas continue to be approved despite the added scrutiny, though some applicants face delays or additional review.
Update 6/19/26, 3:17 a.m. ET: This article was updated with comment from the State Department.
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