The Trump Administration’s H-1B crackdown: What employers need to know

Both the U.S. Citizenship and Immigration Services and the U.S. Department of Justice issued public statements yesterday announcing the adoption of aggressive efforts to address purported discrimination against U.S. workers. Specifically, effective immediately, the USCIS and the DOJ are implementing measures to identify employers who favor H-1B visa holders over U.S. workers.

The H-1B visa program allows companies to recruit and temporarily hire highly skilled foreign workers into specialty occupations.

Although the USCIS will continue to conduct random and unannounced visits nationwide, the agency has specified that starting immediately it will take a more targeted approach when making site visits across the country. The onsite visits will focus on the following:

• Small U.S. employers whose business information is not publicly available;
• H-1B-dependent employers (employers who have 50 percent or more employees on H-1B visa status); and
• Employers petitioning for H-1B workers who will work off-site for a third party or client.

During these site visits, as in the past, the USCIS will verify H-1B workers’ wages, job duties, and work locations through interviews and inspections of public access files. If the USCIS suspects fraud or abuse, it may refer cases to U.S. Immigration and Customs Enforcement or to the Immigrant and Employee Rights Section of the DOJ for further investigation.

According to the USCIS, the following examples indicate possible H-1B fraud:

• The H-1B worker is not or will not be paid the wage certified on the Labor Condition Application (LCA).
• There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers.
• The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description.
• The H-1B worker is not working in the intended location as certified on the LCA.

The USCIS has also established an email address dedicated to receiving complaints of a company’s suspected misuse of the H-1B visa program. Complaints may be submitted by both H-1B workers and U.S. workers. To encourage reporting, the agency has established protections for H-1B workers who can demonstrate that they faced retaliation for reporting H-1B fraud or abuse.

The current administration is clearly concerned about potential abuses of the H-1B visa program, but employers have long been held accountable for properly using the specialty occupation visa. Moreover, it has become increasingly difficult for employers to sponsor foreign workers with H-1B visas. For the current “cap” season, it is expected that as many as 250,000 H-1B visa petitions may be filed by employers for the 85,000 new H-1B visas available each U.S. fiscal year. The USCIS conducts a “lottery” to randomly select 85,000 petitions to process, and the remainder are simply sent back, unprocessed.

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