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Administration Targets H-1B Program for Review in Sync with Start of H-1B Lottery Season for FY2018

Administration Targets H-1B Program for Review in Sync with Start of H-1B Lottery Season for FY2018

The U.S. Department of Justice (DOJ) and U.S. Citizenship and Immigration Services (USCIS) issued announcements on April 3 aimed at combating fraud and abuse in the H-1B nonimmigrant visa program, signaling a move to redirect enforcement priorities under the H-1B program. The announcements come, not seemingly coincidental with the first day that USCIS started accepting H-1B petitions for the upcoming fiscal year, for which 85,000 coveted slots are available. Last year, USCIS received 236,000 petitions for these slots.

The DOJ’s announcement is a warning to U.S. employers that they must not discriminate against U.S. workers in favor of H-1B visa holders while the USCIS announcement identifies a policy shift in enforcement to apply a “more targeted approach” to monitor potential abuses when making routine site visits to H-1B employers. It is important to remember that USCIS H-1B filings do not require a test of the U.S. labor market. Department of Labor (DOL) regulations do require, however, labor protection attestations and compliance along with associated penalties for violations. Civil penalties range from $1,811 to $51,588 per violation. Employers should not be surprised to see increased oversight regarding these protections.

While President Trump has not directly targeted skilled immigration since taking office (a proposed executive order leaked and circulated during the first weeks of his presidency suggested he might), the coordinated announcements by the DOJ and USCIS suggest that skilled immigration might be the next focus of President Trump’s immigration agenda.  

USCIS Targets Abuse Review and Creates New E-mail Address for Reports of Alleged Abuse

The Fraud Detection and National Security (FDNS) unit within USCIS regularly conducts unannounced inspections of the worksites of employers who sponsor foreign workers in order to verify the information provided in immigration filings and ensure that foreign workers are complying with the terms of their status. Historically, USCIS has randomly selected certain types of petitions for site inspection and verification, but the new directives will prioritize the following:

  • Cases for which USCIS cannot validate the employer’s basic business information through commercially available data (e.g. often smaller employers in particular are affected)[1];
  • H-1B dependent employers (i.e. 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 will work off-site at another company’s or organization’s location. 

In addition, USCIS announced the creation of a new email address, (REPORTH1BABUSE@USCIS.DHS.GOV), to permit individuals who have information concerning H-1B fraud or abuse to submit tips, information regarding alleged violations, or other relevant information to USCIS for enforcement consideration.

DOJ Warning to H-1B Employers: Do Not Discriminate Against U.S. Workers

The warning from the DOJ is a reminder to employers not to employ discriminatory practices in hiring. While the content of the advisory is nothing new—employers are not allowed to discriminate on the basis of citizenship or national origin in the hiring, firing, or recruiting of employees—an employer must offer fair and nondiscriminatory opportunities for employment to U.S. workers. [2]

As mentioned above, H-1B employers are generally not required to recruit U.S. workers (unless they are H-1B-dependent employers) for positions to be filled by foreign workers.[3] Employers, however, may not show a preference for hiring of foreign workers over U.S. workers. Where DOJ has reason to believe that an employer gave preferential treatment to foreign workers, DOJ has issued civil penalties and in some cases ordered injunctive relief in the form of required trainings for human resources staff or even suspension from participation in certain visa programs. In at least two cases, DOJ made its determination based on online job postings placed by the employer which indicated a citizenship preference.

The timing of this warning underscores that DOJ and USCIS are engaging in an interagency enforcement action targeted at perceived H-1B abuses. Thus, both DOJ and USCIS resources are coordinated in their focus on detecting and deterring abuses, particularly those involving situations in which employers have demonstrated a perceived discriminatory hiring preference that favors H-1B visa holders over U.S. workers.

The DOJ has a hotline for employees who believe they were subjected to discrimination based on citizenship, immigration status, or national origin in hiring, firing or recruitment or referral. (800-255-7688)

What Should Employers Expect and Do?

It is important to remember that an FDNS officer or contractor may contact the employer or the employee for information.[4] The employer should designate knowledgeable contact persons for information related to any visa application. It is also important for employees to be clear on their allowed job duties and location. There is a reason employers of H-1B beneficiaries are to provide a copy of the Labor Condition Application (LCA) posting notice to the employee.

The common red flags for FDNS Site Investigators have been[5]:

  • The beneficiary’s salary in pay statements does not match the amount stated in the petition.
  • Reported income on the beneficiary’s 1040 does not match the beneficiary’s salary or the beneficiary reports as self-employed.
  • The address of the beneficiary’s work location in the petition is not the actual worksite.
  • Virtual offices or empty offices without equipment are listed as the beneficiary’s place of employment.
  • The beneficiary lacks a work email or work phone number.

While most substantive changes to the H-1B program will require legislative action, the authority to investigate and enforce U.S. immigration laws rests predominantly with the U.S. Department of Homeland Security (DHS) [which includes U.S. Immigration and Customs Enforcement (ICE) and USCIS] and the DOJ (as well as the DOL). Until new legislation is in place, expect the new Administration to continue to set policies aimed at increasing review of H-1B compliance by petitioners.

As general best practices in order to ensure compliance with immigration laws and prepare for a potential site visit, employers should consider the following:

  • Continue to consult with Labor and Employment attorneys regarding any questions relating to hiring practices, and be cautious particularly with language used in job postings and questions asked during the interview process. Ensure human resources employees are properly trained.
  • Remember that material changes in job duties, and in the case of H-1Bs, changes to work location, will generally require an amended petition.
  • Carefully review the accuracy of information submitted in support of immigration petitions, and also remember that information submitted to other government agencies, such as the Department of State during the visa application process, is also subject to scrutiny.
  • In the case of an H-1B, ensure that the public inspection file is properly completed and up-to-date via audits. Be sure that the employee received a copy of the LCA, and that acknowledgement of receipt is documented in the file.
  • Human Resources, staff, and company signatories should be aware of the potential for unannounced site visits and should be prepared to follow the employer’s response plan.
  • Set up a plan and procedure in case of an FDNS inspection. As part of that plan, make sure the person who signs the petitions knows where to find/access copies of petitions quickly and to the extent possible, is able to review those petitions before meeting with an FDNS inspector.
  • Small businesses, H-1B-dependent employers, and those employers whose employees work off-site and interact frequently with third-party supervisors and companies should be particularly stringent with their compliance protocols.

On the legislative front, there have also been several bills introduced in Congress to reform the skilled immigration system. Some possible changes to the H-1B program include establishing a priority system for the implementation of the H-1B lottery for cap-subject petitions; setting a wage floor for H-1B petitions; requiring job postings on job search websites prior to filing; shortening the total time period allowed in H-1B status; imposing additional penalties or restricting altogether H-1B filings by H-1B-dependent employers; and requiring additional attestations regarding protections to U.S. workers by the employer prior to filing. (See, for example, the Grassley-Durbin S.B. 180 introduced in January of 2017.) President Trump has also called for a merit-based immigration system. At the very least, the H-1B program in its current state may receive a makeover in the next few years if not a major nip and tuck.  

******UPDATE******

On April 4, the Department of Labor (DOL) followed suit and issued a press release regarding its commitment to protect U.S. workers from H-1B program discrimination. The press release states that DOL will provide greater transparency and oversight by:

  • Rigorously using all of its existing authority to initiate investigations of H-1B program violators. The effort will involve greater coordination with other federal agencies, including the Department of Homeland Security and DOJ for additional investigation and, if necessary, prosecution.
  • Considering changes to the labor condition application (LCA)[6] for future application cycles. DOL indicates that the LCA may be updated to provide greater transparency for agency personnel, U.S. workers, and the general public.
  • Continuing 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.

Analysis: It is now clear that the coordinated interagency efforts to combat perceived H-1B fraud and abuse now include the DOL. In 2012, DOL proposed changes to the LCA form, including:

  • Identifying the employee by name, country of citizenship, date of birth, and immigration status and requiring disclosure of whether a PERM application had previously been filed on the employee’s behalf;
  • Limiting the number of beneficiaries per application; and
  • Requiring H-1B-dependent employers to provide additional details regarding recruitment efforts conducted.

These changes were not ultimately implemented, but are perhaps suggestive of the types of changes that we may see. Stay tuned.

For more information, please contact the authors of this alert, Kathleen Walker (kwalker@dykema.com) or Heather Frayre (hfrayre@dykema.com), or other immigration practice group member Jim Aldrich (jaldrich@dykema.com).


[1] USCIS uses a web based Validation Instrument for Business Enterprises (VIBE) which uses information from Dun & Bradstreet (D&B). Unfortunately, even larger companies’ existence may be questioned using VIBE, which can cause additional delays in processing even with substantial corporate documentation provided by the employing sponsor.

[2] Employers also must attest to the Department of Labor that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater.

[3] U.S. Department of Labor, Wage and Hour Division, Fact Sheet #620, available at https://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62O.pdf

[4] Refer to Petitioner Employment Verification Questionnaire used by FDNS and on file with the practice group.

[5] AILA Practice Pointer on H-1B and L-1 FDNS Site Visits by the VSC Liaison Committee, AILA Doc. No. 16072604.

[6] The LCA is a document required as part of the H-1B, H-1B1, and E-3 programs wherein a prospective employer makes several attestations to which it will adhere, including, for example, that it will pay the foreign worker the required wage and that the employment of the foreign worker will not adversely affect the working conditions of U.S. workers similarly employed.