Immigration Trends and their Effect on Employers of Sponsored Workers05.22.17
Immigration policy has been a focal point of U.S. political debate in the early months of President Trump's administration and while a border wall has yet to be started, the administration has aggressively ramped up its efforts to increase immigration enforcement and border security. In recent weeks, several federal agencies have taken action to further this strategy.
The process of securing a visa is becoming more difficult and time consuming at diplomatic posts around the globe. At the behest of the White House to implement protocols and procedures to enhance screening for visas and other immigration benefits, the U.S. Department of State (DOS) has issued two diplomatic cables providing guidance to all U.S. consular posts regarding enhanced screening and vetting practices for all visa applicants. The guidance calls for higher levels of scrutiny for certain applicant population groups and implements mandatory social media checks for applicants who have visited areas controlled by ISIS. Additionally, no more than 120 visa interviews may be scheduled per day, per consular adjudicator. While the guidance has been general, the DOS cables send a clear message that the federal government intends to intensify its scrutiny of visa applications, reflecting the Trump Administration's "get tough" approach on immigration. All visa applicants should be prepared for delays, including longer wait times for appointments, longer visa interviews, and delays in visa issuance caused by security clearance checks and administrative processing.
Federal agencies are also supporting increased enforcement efforts within U.S. borders. On April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced the introduction of multiple new measures to deter and detect H-1B fraud and abuse. Since 2010, the Office of Fraud Detection and National Security (FDNS) has expanded its on-site fraud inspections in earnest, focusing specifically on businesses that sponsor foreign workers under the H-1B program. This has resulted in thousands of worksite fraud inspections and the revocation of hundreds of H-1B petitions every year. The purpose of an on-site fraud inspection is to verify the existence of the employer, confirm the validity of the information provided in the H-1B petition and determine whether the sponsored employee is working in compliance with the terms and conditions of his/her H-1B status. In the past, site visits were limited to approved petitions. Now, the FDNS conducts site visits to investigate already approved petitions, as well as pending petitions. Moreover, in most cases, H-1B site visits are unannounced although occasionally an inspector may forewarn an employer of the impending visit.
While on-site fraud inspections have been a long-standing USCIS practice, the new measures will take a more targeted approach when inspectors make site visits to H-1B worksites, focusing on:
- cases where USCIS cannot validate the employer's basic business information through commercially available data;
- H-1B-dependent employers or (i.e., higher H-1B employee ratio); and,
- employers who petition H-1B workers to work offsite at another company or organization's location.
In April, the U.S. Department of Labor (DOL) announced that it too will begin reviewing the H-1B program more closely in an effort to protect U.S. workers from H-1B program discrimination. The DOL plans to rigorously use its existing authority to investigate potential violations of the H-1B program. Additionally, the DOL noted that it plans to coordinate with and support other federal agencies, including the U.S. Department of Homeland Security and the U.S. Department of Justice, in the investigation and prosecution of employers engaged in H-1B fraud or abuse. Looking forward, the DOL is also considering making changes to the Labor Condition Application, a required step in the H-1B sponsorship process, to provide greater transparency for agency personnel and the public.
On April 18, 2017, President Trump signed an Executive Order entitled "Buy American and Hire American," which also reflects the administration's desire to reform the H-1B program. It instructs the Secretary of State, Attorney General, Secretary of Labor, and Secretary of Homeland Security to review the existing H-1B program and suggest reforms to help ensure that H-1B visas are awarded to the most skilled or highest-paid beneficiaries. While this Order has not created any immediate changes to the H-1B program, substantial changes to the program are expected.
Employers with sponsored workers should take note of these policy and procedural changes as they may affect an employee's ability to work and travel. Increased scrutiny of visa applications will make it more difficult for many sponsored employees to travel internationally and may result in significant delays in return travel to the United States. Employers with H-1B employees should also be prepared for increased enforcement efforts and changes to the H-1B program moving forward. At this time, immigration policies remain fluid, however, the Trump administration continues to demonstrate a commitment to increasing enforcement and security actions.