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The Department of Labor (DOL) intends to make changes to the labor condition application form that employers use when seeking to hire H-1B workers. DOL also aims to establish filing fees for labor certifications and prevailing wage requests required when employers sponsor foreign nationals with employment-related visas.
The DOL announced June 6 that it will employ a variety of methods, from collecting more information from employers to using more criminal referrals for prosecution instead of civil penalties, to protect U.S. workers and enforce visa program rules.
Meanwhile, U.S. Citizenship and Immigration Services (USCIS) Acting Director James McCament recently stated that the agency "continues to review all policies related to the H-1B program and is planning to publish an updated H-1B guidance section to the USCIS Policy Manual." He told members of the Senate Judiciary Committee that USCIS is committed to addressing H-1B visa abuses through continued investigation, potential new regulations and internal agency changes.
These announcements "point to the continuing need for employers to ensure they are compliant with immigration regulations and record-keeping requirements," said Dick Burke, CEO of Envoy, an immigration services provider based in Chicago. "Employers can expect increased onsite visits from inspectors, and the DOL may soon seek the authority to conduct investigations of their own volition, as opposed to in response to an employee or whistle-blower complaint, which has historically been the case."
[SHRM members-only toolkit: Obtaining U.S. Employment Visas]
One of the proposed changes listed in the announcement refers to the labor condition application form that employers must complete to verify that they're paying the required amount to H-1B visa workers and that U.S. workers aren't available to fill these positions.
The DOL is likely looking at unveiling a longer labor condition application form seeking additional information, said Justin Storch, manager of agency liaison for the Council for Global Immigration, an advocacy organization for employment-based immigration based in the Washington, D.C., area. "DOL has wide latitude to ask for additional information about employers and their workforce," he said. "It's hard to know for sure until we see a proposed form, but we would want to ensure that any additional requests and public disclosures adequately protect private information."
DOL Asks for New Filing Fees
At the same time, the White House has requested that the DOL be given the authority to establish new filing fees for the adjudication of labor certifications and prevailing wage requests.
This move would allow the DOL's Office of Foreign Labor Certification (OFLC)—whichhandles PERM labor certification, labor condition applications for H-1B visas, and H-2A and H-2B labor certifications and prevailing wage determinations—to become self-funded like USCIS, said Moni K. Gill, an attorney in the Austin, Texas, office of Jackson Lewis.
"The underlying assumption is that adding fees will protect American workers from displacement by foreign labor," she said.
"The DOL has had that request in a number of budgets under Obama and now has the request in the Trump budget as well," Storch explained. "This could mean the agency has some momentum with this request, and it could become a reality."
Many immigration-related filing fees were increased in 2016, including for H-1B petitions, which were raised from $325 to $460. At the start of 2016, H-1B dependent employers were obligated to pay an additional $4,000 filing fee.
"Additional DOL use fees may be part of the Trump administration's general plan to attempt to reduce abuse in the H-1B and green card process by cracking down on large IT consulting and outsourcing firms," Gill said. "Adding DOL fees may achieve this goal, but consulting firms may simply adapt their business models and move more jobs offshore."
The proposed fee amounts are not yet known, Gill said. "The expectation is that they would be set by regulation. On the plus side for employers, expedited processing fees might become available."
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