On April 4, 2017, the U.S. Department of Labor (DOL) issued statements of its intent to protect American workers from H-1B program discrimination. This comes on the heels of an announcement from the U.S. Citizenship and Immigration Services (USCIS) of measures to deter and detect H-1B visa fraud and abuse (the “Announcement”). USCIS’ guidance specified that its practice of conducting random administrative site visits will likely become more common place and there will be a concerted effort to target certain H-1B employers. Employers will need to verify H-1B workers’ wages, job duties, and work locations during these site visits. The more targeted approach to site visits began as of April 3, 2017.
Both the DOL and USCIS announcements come a month after USCIS temporarily suspended Premium Processing for all H-1B Petitions filed on or after April 3, 2017 to help the USCIS reduce its overall backlog.
In addition, on March 31, 2017, USCIS issued a Policy Memorandum (“PM”) (PM-602-0142) superseding and rescinding a December 12, 2000 PM entitled “Guidance memo on H1B computer related positions” issued to the Nebraska Service Centre (NSC). The policy memo issued on March 31 is supposed to provide clarity on USCIS' approach to determining whether the position of "Computer Programmer" is deemed a "specialty occupation" that would be eligible for an H-1B visa. One stated purpose of issuing this guidance was that the prior guidance was dated, no longer accurately articulated USCIS’ policy, and that it needed to be rescinded to prevent inconsistencies in adjudications of H-1B petitions.
- DOL will coordinate with other federal departments and agencies to investigate and potentially prosecute H-1B program violators.
- DOL will consider changes to the Labor Condition Application (LCA) for future application cycles in order
to increase transparency for agency personnel, U.S. workers and the general public.
- Stakeholders will be engaged to determine better ways to protect U.S. workers under existing or future legislation.
- In the Announcement, USCIS stated that it will continue random and unannounced visits to all H-1B employers, both before and after any petition is adjudicated.
Commencing on April 3, 2017, USCIS will target:
- Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
- H-1B-dependent employers, specifically 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.
- USCIS has stated that the site visits are not meant to target the nonimmigrant employees, rather to identify employers who are abusing the system.
- Site visits will be used to determine whether H-1B-dependent employers who normally must meet H-1B recruitment attestation requirements are actually paying their workers the statutorily required salary to qualify for an exemption from these requirements.
- Site visits will be used in determining if certain H-1B employers are evading an obligation to make a good faith effort to recruit and not displace U.S. workers.
- USCIS will review whether workers are not being paid while in the U.S as they wait for work, a practice known as “benching.”
- USCIS has established an email address which encourages individuals (both American workers and H-1B workers who suspect there is H-1B fraud or abuse) to submit tips, which will be used for investigations and referrals to law enforcement agencies for potential prosecution.
USCIS will be looking for the following examples of H-1B fraud indicators:
- The H-1B worker is not or will not be paid the wage certified on the LCA;
- There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers;
- The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description;
- The H-1B worker has less experience than U.S. workers in similar positions in the same company; and
- The H-1B worker is not working in the intended location as certified on the LCA.
In addition to the Announcement, USCIS issued a new PM clarifying its approach to the “Computer Programmer” as a “specialty occupation” eligible for an H-1B visa.
- In order to qualify for an H-1B, including as a Computer Programmer, the employer must show that the position requires theoretical and practical application of a body of highly specialized knowledge, which requires the attainment of bachelor's degree or higher in a specific specialty.
- The PM supports the proposition that a position cannot simultaneously have a job classification and pay rate at the low end of the industry salary range, while at the same time listing specific job requirements and skills that are more complex and specialized.
- The PM reminds USCIS officers to review the applicant’s Labor Condition Application (LCA) and ensure the wage level designated by the petitioner corresponds to the proffered position. If the position is designated as Level I, entry-level, this could be deemed to contradict a claim that the position is particularly complex, specialized, or unique compared to positions within the same occupation.
Impact and next steps
The latest guidance issued by DOL concerning investigations and prosecution, and USCIS’ targeted site visits and scrutiny of what qualifies as a specialty occupation in the H-1B context, just one month after suspending Premium Processing for this classification, appears to be a clear message from the current Administration that this visa category is currently under significant scrutiny. As DOL and USCIS further emphasize that protecting American workers by combating fraud in employment-based immigration programs is a top priority, H-1B employers need to focus on compliance and conducting regular “health checks” to prepare for these measures.
We encourage you to stay connected to your EY Law LLP legal advisor for additional information on your foreign national population during the coming days and weeks. We are monitoring the Announcement’s implementation and will update you on any further guidance provided.
How we can help
Individuals or organizations who believe they may be affected by these policies should contact one of our US immigration professionals to discuss the impact in greater detail.
EYG no. 01654-171Gbl
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