Trump administration cautions employers about immigration-related discrimination and H-1B Visa fraud and abuse

April 13, 2017

Immigration Law Alert

Author(s): Jason Gerrol

In a series of notices issued by the Departments of Justice, Labor and Homeland Security, the Trump administration made clear its intentions to protect U.S. workers, and detect and deter H-1B visa fraud and abuse through targeted enforcement, and other means.

During the week of April 3, 2017, to April 7, 2017, U.S. Citizenship and Immigration Services (USCIS) again received well over the annual cap of 85,000 new H-1B petitions for fiscal year 2018 (65,000 Bachelor’s degree cap and 20,000 Master’s degree cap), making this one of the busiest weeks of the year for both USCIS and many H-1B employers. Not coincidentally, this week was also marked by public notices from the U.S. Department of Justice (DOJ) cautioning employers seeking H-1B visas not to discriminate against U.S. workers; the U.S. Department of Labor (DOL) announcing plans to protect U.S. workers from H-1B program discrimination; and the Department of Homeland Security (DHS), and USCIS in particular, announcing additional measures to deter and detect H-1B visa fraud and abuse.

While the notices do not change existing immigration law, and should not deter U.S. employers from hiring highly skilled foreign workers in specialty occupations, they do serve as an important reminder of the need for full compliance with the H-1B program requirements, and the importance of consulting with experienced immigration counsel when hiring and sponsoring foreign workers.

What do the DOJ, DOL and USCIS notices say?

The DOJ, DOL and USCIS notices all have a common theme: protecting U.S. workers and deterring and detecting H-1B visa fraud and abuse. In particular, the DOJ notice reminds employers of the anti-discrimination provisions of the Immigration and Nationality Act (INA), which in general prohibits an employer from discriminating against “any individual” on the basis of national origin or citizenship status in the hiring, firing and recruitment processes. As emphasized in the DOJ notice, an employer may violate the INA if they have a discriminatory hiring practice that prefers H-1B visa holders over qualified U.S. workers. While the DOJ notice focuses on protecting U.S. workers, it is important to note that the INA anti-discrimination provisions protect all workers, including foreign national workers, from discriminatory hiring practices, including document abuse in the Form I-9 employment eligibility verification process.

The USCIS notice, titled “Putting American Workers First,” announced additional measures to detect and deter H-1B visa fraud and abuse. First, in an effort to further identify and combat H-1B fraud and abuse, USCIS has established an e-mail address allowing anyone, “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 to USCIS information about alleged H-1B violations and other information (USCIS intends to use information received for investigations and referrals to other agencies).

Second, USCIS intends to implement a more targeted approach to H-1B employer site visits in order to identify employers who are abusing the H-1B program. Indicators of H-1B fraud and abuse, per USCIS guidance, include: (1) the H-1B worker is not being paid the wage certified on the Labor Condition Application (LCA); (2) there is a wage disparity between H-1B workers and other workers performing the same or similar duties; (3) the H-1B worker is not performing the job duties specified in the H-1B petition; (4) the H-1B worker has less experience than U.S. workers in similar positions at the same company; and (5) the H-1B worker is not working at the location certified on the LCA. While USCIS has had a policy of making unannounced site visits since 2009, USCIS will now focus those site visits on employers petitioning for H-1B workers who work off-site at another company or organization; H-1B dependent employers (i.e., employers with a high ratio of H-1B workers compared to U.S. workers, as defined by statute); and cases where USCIS cannot validate the employer’s basic business information through commercially available data.

Finally, in a notice issued on April 4, 2017, the DOL announced that it “fully supports the U.S. Department of Justice in cautioning employers who petition for H-1B visas not to discriminate against U.S. workers, as well as the [USCIS] measures to further deter and detect H-1B visa fraud and abuse.” The DOL announced that it will “protect American workers against discrimination” by initiating investigations of alleged H-1B program violators; considering changes to the LCA, which is required to petition for an H-1B, in order to provide “greater transparency for agency personnel, U.S. workers and the general public”; and continuing to evaluate the H-1B program “to provide greater protections for U.S. workers.”

Should H-1B employers be concerned about these notices?

The H-1B visa program was created to allow U.S. employers to hire highly skilled foreign workers in specialty occupations when there is a shortage of qualified workers to fill those positions. U.S. employers who are utilizing the H-1B program to fill critical positions, and doing so in full compliance with the immigration laws and regulations, need not be concerned with the recent DOJ, DOL and USCIS notices. However, those notices do serve as important reminders for employers to review their hiring practices; internal Form I-9 employment eligibility verification procedures; and immigration sponsorship policies, and H-1B sponsorship policies in particular. If an employer is currently employing H-1B workers, ensuring those workers are in full compliance with the terms and conditions of employment as represented on the LCA and H-1B petition is critical. Specifically, employers should routinely audit their Forms I-9, and ensure their H-1B Public Access Files, which contain the LCA and other required H-1B documentation, are in full compliance and up to date.

While any employer may experience a USCIS site visit, the focus of the administration appears to be on H-1B dependent employers and employers who routinely place H-1B workers at third-party work locations (e.g., IT Staffing/Consulting firms). This interpretation is reinforced by yet another recent USCIS memo, issued on March 31, 2017, which may make it harder for some companies to sponsor computer programmers for the H-1B visa classification.

Will the Trump administration, and relevant immigration agencies, continue to focus on the H-1B visa program?

Probably. In a previously leaked draft executive order, President Trump made clear that he intended to review and revise the H-1B visa program, and other U.S. work visa programs, in a manner that would deter U.S. employers from hiring foreign national workers, and encourage the hiring of U.S. workers. The recent notices from DOJ, DOL and USCIS are consistent with this intention, and legislation has been proposed to modify the H-1B program (and other work visa programs), although it remains to be seen which legislative changes, if any, will become a reality. Both Democrats and Republicans alike have previously voiced support for the H-1B visa program, and recognize the importance of H-1B visas to many U.S. employers and the U.S. economy.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

Back to top