The Department of Labor has announced plans “to protect U.S. workers from H-1B program discrimination” by mandating greater transparency and oversight.
The visa program in question allows employers to hire highly skilled foreign workers in specialty occupations. H-1B visas authorize the temporary employment of qualified individuals who are not otherwise authorized to work in the U.S.
“In recent years, some employers have used the H-1B program to hire foreign workers despite American workers being qualified and available for work or even to replace American workers,” the Labor Department wrote in an April 4 statement. It “fully supports the Department of Justice in cautioning employers who petition for H-1B visas not to discriminate against U.S. workers,” as well as the Department of Homeland Security’s “measures to further deter and detect H-1B visa fraud and abuse.”
The announcement, along with others emerging from government agencies in recent days, will certainly add to the uneasiness experienced by U.S. tech companies. Companies that take part in the program say they rely on the specialized expertise that comes with imported workers. President Donald J. Trump, in both the White House and on the campaign trail, has been severely critical of the process and its potential to take jobs away from Americans.
A lottery, which began on April 3, provides the process by which companies claim the 85,000 visas allowed annually. The traditional April lottery remained in place, despite fears the Trump Administration would eliminate it.
The Labor Department says it will “protect U.S. workers against discrimination” through the following actions:
Rigorously using all of its existing authority to initiate investigations of H-1B program violators.
Greater coordination with other federal agencies, including the departments of Homeland Security and Justice for additional investigation and, if necessary, prosecution.
Considering changes to the Labor Condition Application for future application cycles. The Labor Condition Application, a required part of the H-1B visa application process, may be updated to provide greater transparency for agency personnel, U.S. workers and the general public.
Engaging stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes.
More information about the Department of Labor’s foreign labor certification program can be found here; more information on enforcement of the nondiscrimination requirements of the H-1B program is available here.
An April 3 announcement by U.S. Citizenship and Immigration Services also detailed “multiple measures” to deter and detect H-1B visa fraud and abuse. It 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 says it 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 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,” it says.
A March 31 policy memorandum also clarified previous guidance related to the eligibility of computer programmers as a “specialty occupation.” The upshot: expect the visa program to be more selective as not all programmers, in particular those with minimal education in the field, will qualify.
“Based on the current version of the Handbook, the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation,” the USCIS memo says.
In many cases, it says, the regulatory definition of “specialty occupation” requires, in part, “that the proffered position have a minimum entry requirement of a U.S. bachelor’s or higher degree in the specific specialty, or its equivalent.”