Following the signing of President Trump’s Executive order on April 18th, four federal agencies were tasked with reviewing and recommending changes pertaining to employment-based foreign worker programs in order to prevent fraud and abuse and to ensure that visas were being awarded to the most skilled and highest-paid individuals. Naturally, companies known for using these employment-based visa worker programs were concerned.
In response to the Executive Order, U.S. Citizenship and Immigration Services announced that it intends to narrow its targets for site visits and focus particularly on cases where 1) The agency is unable to validate an employer’s basic information through “commercially available data”, 2) employers have a relatively high ratio of H-1B workers compared to other types of workers, and 3) employers who petition H-1B workers that will work off-site. The Acting Director also noted that USCIS “continues to review all policies related to the H-1B program and is planning to publish an updated H-1B guidance section the USCIS Policy Manual.” As always, employers should ensure that their practices related to nonimmigrant visa programs are fully compliant.
On June 6th, the Department of Labor issued a news release noting that the DOL would be ramping up determinations aimed at detecting and preventing visa abuse. Labor Secretary Alexander Acosta stated that “the U.S. Department of Labor will focus on preventing visa program abuse and take every available legal action against those who abuse these programs.” This move will include increases in both civil investigations and criminal referrals. Labor Department officials announced that these increased efforts will involve not only H-1B visas, but other types of nonimmigrant work visas such as H-2A and H-2B as well.
Rightfully, Director Acosta expressed his concern with the abuse of these programs and further announced that the DOL will “enforce vigorously” all laws within its jurisdiction and take specific steps associated with relevant nonimmigrant visa programs. Such steps include but are not limited to:
- Directing the Department’s Wage and Hour Division to use all its tools in conducting civil investigations to enforce labor protections provided by the visa programs;
- Directing the Department’s Employment and Training Administration (ETA) to develop proposed changes to the Labor Condition Application (LCA), and for the division to review their investigatory forms, to better identify systematic violations and potential fraud, and provide greater transparency for agency personnel, U.S. workers and the general public;
- Directing the division, ETA and the Office of the Solicitor to coordinate the administration and enforcement activities of the visa programs and make referrals of criminal fraud to the Office of the Inspector General; and
- Establishing a working group made up of senior leadership from ETA, the division and Solicitor’s office to supervise this effort and coordinate enforcement to avoid duplication of efforts and maximize the efficiency of the department’s activities regarding the visa programs. The working group shall invite OIG to send representatives to participate in its efforts.
The Department will also continue working with the Departments of Justice and Homeland Security to further investigate and detect visa program fraud and abuse. This announcement clearly signals that the DOL – along with the other federal agencies – will be stepping up efforts at aggressive confrontation and punishment of visa program fraud and abuse. However, the DOL did not speak on the number of foreign workers visas available each year nor did it indicate any intent to address this.
Here at W&O, we continuously monitor developments with respect to the implementation of President Trump’s executive orders concerning immigration and will continue to post updates as soon as any new guidance becomes available.
ABOUT THIS AUTHOR
Richard M. Wilner
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.
Nancy Vo is currently an Associate Attorney at Wilner & O’Reilly. She graduated Magna Cum Laude from Whittier Law School. While at Whittier, she was an editor on Whittier Law Review, had an article published in 2015, and earned a CALI award in Legal Writing. Ms. Vo earned a Bachelor’s Degree in Political Science and Public Law from the University of California, San Diego.