Just after the H-1B cap filing period kicked off on April 3, a series of announcements by USCIS, DOL and DOJ this week confirmed the Trump Administration’s aim to increase H-1B visa enforcement and compliance efforts.
USCIS: Increased Site Visits
USCIS unveiled its increased efforts to verify compliance with requirements of the H-1B classification through the release of a website entitled “Combating Fraud and Abuse in the H-1B Program.” The new site contains information on identifying abuse/fraud and establishes a means for members of the public to report suspected H-1B program violations.
Beginning this month, employers should also expect an increase in employment site visits targeting:
- H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers) Expect increased review of the obligation to recruit US workers or to pay a minimum salary of $60,000.
- Cases where USCIS cannot validate the employer’s basic business information through commercially available data (raising the question of business legitimacy and ability to pay offered salary).
- Employers petitioning for H-1B workers who work offsite at another company’s location. This will particularly impact staffing companies. Expect increased scrutiny regarding which party has the right to control the employee and whether the worksite has complied with LCA regulations.
Though targeted site visits will focus resources where fraud and abuse of the H-1B program may be more likely to occur, USCIS will continue to make unannounced visits to all H-1B employers and such employers should always be prepared in the event that a Site Inspector comes calling.
Site Visit Tips
Employers should take active measures now to prepare for site inspections, even if you have never been audited. This is particularly important for employers who will likely be targeted under the new enforcement priorities. Advanced planning should include:
- Designation of an HR point person who knows the employment status, job duties, and working conditions of all H-1B staff. Having one point of contact can avoid inconsistencies in your interactions with government agents.
- Counseling HR staff, reception, and signatories to anticipate a site visit and to be prepared to follow a response plan.
- Reporting any changes in job duties, work location, or employment status to your immigration attorney so he/she can confirm whether an amended petition must be filed PRIOR to making changes.
- Confirming that the employee is familiar with their own visa application and has confirmed its contents.
- Ensuring that the public inspection file is properly completed and up-to-date. Be sure that the employee received a copy of the LCA and that acknowledgement of receipt is documented in the file. (If you aren’t certain about what the file must contain, contact your Ellis Porter attorney.)
DOL: More LCA Audits and Investigations
The Department of Labor (DOL) announced that it will ramp up its efforts to ensure that H-1B employers are complying with their Labor Condition Application (LCA) legal obligations by increasing audits and investigations. DOL also suggested it was considering LCA process changes that would provide more transparency to U.S. workers and the general public.
DOJ: Anti-Discrimination Reminder
The Department of Justice (DOJ) followed with its own announcement cautioning employers that use the H-1B visa program not to discriminate against U.S. workers. This warning seeks to put employers on notice that the DOJ will vigorously investigate and prosecute employers that it believes are displacing U.S. workers with H-1B workers, or otherwise putting U.S. workers in a disfavored status.
Operating in a More Strict Compliance Environment
While increased scrutiny is never welcome news, it provides a valuable opportunity for employers to clean up their records and “get their immigration house in order.” If you suspect that your immigration records may not be compliant, or if you just want a better understanding of site visits, LCA audits or other immigration compliance issues, Ellis Porter has immigration compliance experts available to answer your questions.