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Employers in the U.S. and the foreign IT outsourcing firms they contract with for H-1B visa workers are the primary targets of new enforcement measures announced by the Trump administration.
The Justice and Homeland Security departments announced April 3 stricter enforcement of the visa program for high-skilled guest workers, in the form of more-targeted worksite inspections "where fraud and abuse … may be more likely to occur," and in investigations of discrimination against U.S. workers in the hiring process.
The announcements were made the same day that the annual scramble got under way for the 85,000 H-1B visas allowed by the federal government each year for jobs starting Oct. 1, 2018.
The H-1B visa program is meant to help U.S. employers fill jobs where there is a shortage of qualified native workers. But critics of the program argue that a majority of the visas are used to contract for cheaper IT labor, which negatively affects U.S. workers by decreasing wages and employment opportunities.
U.S. Citizenship and Immigration Services (USCIS) said it would enhance and increase site visits, interviews and investigations of employers to prosecute H-1B program violators and ensure that American workers are not overlooked or replaced in the hiring process.
"USCIS has already been conducting random H-1B site visits for many years," said Julie Pearl, CEO and managing attorney of the Pearl Law Group, based in the San Francisco Bay area. "Their announcement made clear that they will ramp up the visits with specific focus on companies with a high ratio of H-1B employees, IT outsourcing companies that place their employees on client sites, and newer companies that have not yet had their basic information make it to commercially available databases. It is unclear whether all other H-1B petitioners will also see an uptick in site visits at this time."
The newly-announced measures will hit hardest the foreign IT outsourcing companies that supply large numbers of H-1B workers to U.S. companies.
"This shift from random site visits to targeted visits will affect IT outsourcers more than others," said Shanon Stevenson, a partner in the Atlanta office of Fisher Phillips and a member of the firm's Global Immigration Practice Group. They are usually considered H-1B dependent (e.g.,
companies with at least 51 full-time employees and employing a number of H-1Bs
that is equal to 15 percent or more of the U.S. workforce of the organization) and file the largest number of H-1B cap-subject petitions as well, she added.
[SHRM members-only HR Q&A: What is the foreign labor certification process?]
During site visits, USCIS will:
Investigators may also ask to see pay records and inquire into any wage disparity between H-1B workers and other workers performing the same or similar duties, and whether the H-1B worker has less experience than U.S. workers in similar positions at the company.
"They may ask H-1B workers at client sites who their supervisor is, and is the supervisor from the petitioning employer actually on site," Stevenson said. "Investigators may ask for a copy of the worker's performance review to see who is controlling his or her work. What they are trying to get at is whether the client employer should be the actual petitioner for the H-1B versus the staffing firm who filed the petition."
Employers in this environment should already be preparing for site visits if they have any foreign nationals on their worksite, said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management. "If your organization falls under one of the targeted categories, ensure all relevant personnel are prepared for a site visit, including HR managers, the managers of the H-1B workers and the visa holders themselves. Even if you are not in one of the categories to receive extra attention, but you have foreign workers, you should be prepared."
To aid enforcement, the agency has established an e-mail address dedicated to receiving information about suspected H-1B visa fraud or abuse. Anyone can e-mail ReportH1BAbuse@uscis.dhs.gov to submit tips, alleged violations, and other relevant information about potential visa fraud or abuse.
"This could have more impact than anything else announced," Stevenson said. "It's the first time the agency has had an e-mail dedicated to detect H-1B fraud and abuse and will provide more of a direct route to more-targeted investigations against employers."
Discrimination Against U.S. Workers Will Not Be Tolerated
Separately, the Department of Justice (DOJ) cautioned employers petitioning for H-1B visas to ensure they are not discriminating against U.S. workers based on citizenship or national origin when recruiting or making hiring decisions.
"The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers," said Acting Assistant Attorney General Tom Wheeler. "U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims."
The DOJ announcement follows various high-profile media reports that some employers laid off their IT staffs and replaced them with H-1B workers.
"The DOJ announcement is interesting, because the Immigrant and Employee Rights Section was initially set up to protect foreign nationals, but we have seen a focus [coming out of that office ]—even before this release—on protecting U.S. workers," Storch said. "It's not really a surprise, but an indication that the office will increase focus on employers who are perceived as discriminating against U.S. workers."
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