United States: Trump Administration Announces H-1B Compliance and Enforcement Measures
This week, the Departments of Labor, Homeland Security and Justice unveiled coordinated initiatives to increase scrutiny of the H-1B program and toughen employment-based immigration enforcement. Employers can expect more frequent worksite audits and investigations, and greater scrutiny of discrimination claims from U.S. workers.
The Departments of Labor, Homeland Security and Justice this week announced an array of H-1B compliance initiatives and greater interagency coordination of enforcement efforts against organizations alleged to have violated H-1B program rules.
The agencies are actively encouraging members of the public to report suspected H-1B abuse and discrimination against U.S. workers, which could trigger more worksite audits and investigations.
These measures are consistent with the Trump Administration's promise to subject the program to greater scrutiny and reforms, and come as the FY 2018 H-1B cap filing season begins.
Increased LCA Audits and Investigations Expected
The Department of Labor has signaled that it will increase audits and investigations of H-1B employers to ensure that they are complying with labor condition application (LCA) obligations. DOL plans to work more closely with the Departments of Homeland Security and Justice on enforcement of program rules.
DOL indicated that it is considering future changes to the LCA process to provide "greater transparency" to U.S. workers and to the general public. This could include more publicly available information about employers that use the H-1B program. DOL also suggested that it would seek legislative changes to broaden its authority to initiate investigations, which is largely complaint-driven under current law.
New Focus for FDNS Site Visits
Effective immediately, the USCIS Fraud Detection and National Security (FDNS) Unit will focus its site visit program on H-1B dependent employers, employers who place H-1B workers at third-party worksites, and employers whose businesses cannot be verified through publicly available information.
Inspectors will verify whether H-1B dependent employers are fulfilling their recruitment and non-displacement obligations or, alternatively, meet the criteria for an exemption from those obligations based on the H-1B employee's wage or education level. With respect to third-party placement of H-1B employees, inspectors are expected to look at how H-1B employees are supervised and verify whether an employer-employee relationship exists between H-1B beneficiaries and petitioners.
For further information on the FDNS site visit program, review Fragomen's detailed FAQ.
USCIS Encourages the Public to Report H-1B Abuse
USCIS is encouraging members of the public to report suspected H-1B program violations to a dedicated agency email address, and educate themselves on Labor Department and Immigration and Customs Enforcement rules. Reports from the public could be referred to other agencies for investigation.
Justice Department Reminds Employers of Anti-Discrimination Rules
The Justice Department issued a warning to H-1B employers that displacing U.S. workers in favor of foreign nationals on temporary visas may be deemed citizenship status discrimination - a violation of federal immigration law that can subject an employer to civil penalties.
The warning is an indication that the Justice Department's Immigrant and Employee Rights Section (formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices) will continue to scrutinize employers who hire foreign professionals and intensify its investigation of claims of discrimination brought by U.S. workers.
What This Means for Employers
The agency announcements demonstrate the Trump Administration's determination to fulfill its promise to strengthen H-1B enforcement. The announcements also signal the Administration's intent to expand government agency authority to initiate investigations against employers.
In the current environment, it is more important than ever that employers have a comprehensive and effective immigration compliance program. If you have questions about compliance, please contact your Fragomen immigration professional or the firm's Government Strategies and Compliance Group. This alert is for informational purposes only.