Wyatt Employment Law Report

H-1B Enforcement Stepped Up

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By Glen Krebs

On April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced multiple measures to further deter and detect H-1B visa fraud and abuse.  On April 4, 2017 the U.S. Department of Labor (DOL) announced plans to protect U.S. workers from H1B program discrimination by providing greater transparency and oversight.  These announcements have caused companies which regularly use H-1B workers to be concerned about their workforce in coming years.

The companies mostly affected by this policy change will be outsourcing firms – companies which hire H-1B workers and then place them at the worksite of other companies.  Many of the outsourcing firms are headquartered in India and have become the biggest users of the H-1B program.

The USCIS stated as follows:

“Beginning today (April 3, 2017), USCIS will take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees.  USCIS will focus on:

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

“Targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers.  USCIS will continue random and unannounced visits nationwide.  These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system.

“Employers who abuse the H-1B visa program negatively affect U.S. workers, decreasing wages and job opportunities as they import more foreign workers.

“To further deter and detect abuse, USCIS has established an email address which will allow individuals (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 tips, alleged violations and other relevant information about potential H-1B fraud or abuse.  Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution.”

In addition, USCIS issued a memo Friday that said “computer programmer” would no longer be considered automatically an H-1B “specialty occupation” absent additional information.

The DOL stated as follows:

“The department fully supports the U.S. Department of Justice in cautioning employers who petition for H1B visas not to discriminate against U.S. workers, as well as the U.S. Department of Homeland Security’s measures to further deter and detect H1B visa fraud and abuse. The department will protect American workers against discrimination through the following actions:

  • Rigorously use all of its existing authority to initiate investigations of H1B program violators.  This effort to protect U.S. workers will also involve greater coordination with other federal agencies, including the departments of Homeland Security and Justice for additional investigation and, if necessary, prosecution.
  • Consider changes to the Labor Condition Application for future application cycles.  The Labor Condition Application, which is a required part of the H1B visa application process, may be updated to provide greater transparency for agency personnel, U.S. workers and the general public.
  • Continue to engage stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes.

“Individuals can report allegations of H1B violations by submitting Form WH4 (https://www.dol.gov/whd/forms/fts_wh4.htm) to the department’s Wage and Hour Division.”

Leave a reply. Please note that although this blog may be helpful in informing clients and others who have an interest in information privacy and security, it is not intended to be legal advice. The information on this blog also should not be relied upon to form an attorney-client relationship.

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