On April 18, 2017, President Trump signed a new Executive Order, “Buy American and Hire American.” In the “Hire American” portion of the order, Trump announced he was directing DOL, DOJ, DHS, and DOS to review the current laws governing the H-1B program and suggest changes to prioritize the most skilled and highest paid positions. The issuance of such Executive Order is on the heels of the government’s announcement that it had received 199,000 H-1B petitions during the April 2017 filing period (compared with 236,000 petitions filed last year).
The President also indicated he was directing federal agencies to review all visa programs and take prompt action to crack down on fraud and abuse in order to protect U.S. workers.
Although it was signed with ceremonial flair, the Executive Order will have no immediate impact on H-1Bs. Many of the changes to the H-1B program contemplated by the Administration would require legislative action or rulemaking and would take time to go through the necessary processes.
As a prelude to the Executive Order, the U.S. Department of Labor recently announced plans to protect U.S. workers from H-1B program discrimination by providing greater transparency and oversight. As to such point, it is important to keep in mind that so long as an employer does not discriminate against U.S. workers (e.g., having a policy to only hire H-1B workers to fill certain positions), an employer may choose to hire foreign workers despite U.S. workers being qualified and available for work – so long as the appropriate wage is paid to the foreign nationals and the employment of H-1B foreign nationals will not adversely affect the working conditions of U.S. workers similarly employed in the area of intended employment.
The DOL, however, is now cautioning employers who petition for H-1B visas not to discriminate against U.S. workers, and is supporting the U.S. Department of Homeland Security’s measures to further deter and detect H-1B visa fraud and abuse.
DOL advises that it will protect American workers against discrimination through the following actions:
- Rigorously use all of its existing authority to initiate investigations of H-1B program violators. This effort to protect U.S. workers will also involve greater coordination with other federal agencies, including the departments of Homeland Security and Justice for additional investigation and, if necessary, prosecution.
- Consider changes to the Labor Condition Application for future H-1B application cycles. The Labor Condition Application, which is a required part of the H-1B visa application process, may be updated to provide greater transparency for agency personnel, U.S. workers and the general public.
- Continue to engage stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes.
To further deter and detect abuse, U.S. Citizenship and Immigration Services (USCIS) has established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Individuals also can report allegations of H-1B violations by submitting Form WH-4 to the department’s Wage and Hour Division.
WHAT DOES THIS MEAN FOR U.S. EMPLOYERS WHO RELY ON THE H-1B PROGRAM?
Employer compliance with the rules governing the H-1B program is now paramount. In this regard, employers should adopt the following best practices:
- Anticipate (and, thus, be prepared for) an increase in unannounced H-1B site visits by DOL and USCIS, especially if the employer is an H-1B dependent employer or places H-1B workers off-site at client locations, or if the government is unable to verify the employer’s business information using commercial sources such as the Validation Instrument for Business Enterprises (VIBE) Program. Such site visits will most likely involve questioning of the H-1B worker to confirm employment in the position offered and salary paid as set forth in the H-1B petition.
- Conduct a self-audit of your H-1B Public Access Files in anticipation of increased audits by DOL and/or USCIS.
- Expect some changes to the Labor Condition Application (LCA) process. The LCA is the form submitted to DOL which, among other things, contains the rate of pay, applicable prevailing wage, period of employment and work location. It also contains attestations by the employer regarding working conditions of the H-1B worker.
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