Trump Administration Signals Increased Investigation and Enforcement of H-1B Employers

June 12, 2017

In early April 2017, at the kickoff of the H-1B cap lottery, both the Department of Homeland Security (DHS) and the Department of Labor (DOL) announced new investigative and enforcement measures that may impact employers of H-1Bs and other foreign workers. The stated purpose of these efforts by both agencies is to combat fraud and abuse of the H-1B visa program by U.S. employers and to maintain the integrity of the H-1B visa program. In conjunction with the DHS’ measures, the Department of Justice (DOJ) released a press release cautioning U.S. employers who are petitioning for foreign workers through the H-1B program to not discriminate against U.S. workers. The DOJ warned U.S. employers that “U.S. workers should not be placed in a disfavored status” compared to foreign workers. These agency announcements were a precursor to the Trump Administration’s Executive Order “Buy American and Hire American,” which was signed on April 18, 2017 and instructs government agencies to rigorously enforce existing laws relating to immigration, review current rules and policy, and propose changes, where appropriate, to protect U.S. workers.
 
The new enforcement measures announced by the DHS will include “targeted” site visits of certain H-1B employers, including:

  • Employers who employ a high percentage of H-1B workers (H-1B Dependent Employers);

  • Employers that assign H-1B workers to work at off-site locations; and 

  • Employers whose basic business information cannot be validated through commercially available data or the USCIS’ VIBE system, which relies on data compiled by Dunn & Bradstreet.

While this targeted approach is a departure from the random administrative site visits conducted by the DHS since 2009, most H-1B employers will likely not be affected. The targeted site visits appear to be aimed primarily at software consulting companies, which are typically H-1B dependent and often assign workers to offsite locations. The DHS has explained that the targeted site visits will allow the agency to determine whether H-1B dependent employers are making a good faith effort to recruit U.S. workers, and comply with the other Labor Condition Application (LCA) requirements. 

Employers who are neither H-1B dependent nor “willful violators” are not required to demonstrate their efforts to recruit US workers. Employers who are not H-1B dependent or willful violators, and who do not assign workers to offsite locations would not be subject to a site visit unless the information about the company in Dunn & Bradstreet is incorrect. More information on H-1B dependency and willful violators can be found here on our website.
 
Similar to the DHS, the DOL stated in its announcement that it will also initiate investigations against "H-1B program violators" in its effort to protect U.S. workers, and will propose changes to update current LCA requirements and procedures to provide more transparency to the public. This announcement may signal an increase in LCA compliance investigations, which have been generally infrequent under the Obama administration. The DOL has authority to initiate such an  investigation upon receiving a complaint from an aggrieved party or  “credible source."

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