Trump Administration’s Spotlight on H-1Bs

On April 18, 2017, President Donald Trump signed an executive order (EO) entitled “Buy American and Hire American.”  The EO calls for the rigorous enforcement and administration of laws governing the entry of foreign workers to the U.S., as well as for the issuance of new guidance and the revision of existing rules to protect the interests of U.S. workers and prevent fraud and abuse.  With respect to the H-1B program, the EO specifically directs the Secretaries of State, Labor and Homeland Security, as well as the Attorney General to, “as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”  It is worth nothing that the EO does not itself change any existing laws or regulations pertaining to H-1B petitions.  The EO is, however, reflective of the increased scrutiny that the Trump Administration is applying to the H-1B program.

Such scrutiny is manifest in two directives that were recently issued by the United States Citizenship and Immigration Service (USCIS) and the United States Department of Justice (DOJ).  A directive issued on April 3, 2017 called for USCIS to adopt a more targeted approach when making random and unannounced site visits to H-1B worksites. USCIS will now focus on H-1B employers whose basic business information cannot be validated through commercially available data; H-1B dependent employers; and employers with H-1B workers at third-party work sites.

In a policy memo issued on March 31, 2017, USCIS also announced the rescission of a prior policy memo on H-1B computer related positions.  Issued on December 22, 2000, the original policy memo provided that most computer programmers possess at least a bachelor’s degree, based on the Occupational Outlook Handbook (published by the U.S. Department of Labor).  Thus, an H-1B petitioner could generally prove that a computer programmer position qualifies as a specialty occupation. In the new policy memo, USCIS has declared that reliance on the Occupational Outlook Handbook is insufficient to establish that a computer programmer is a specialty occupation without additional evidence.

On April 3, 2017, the DOJ also issued a press release cautioning H-1B employers to avoid discriminating against U.S. workers.  Referencing the anti-discrimination provision of the Immigration and Nationality Act, the DOJ cautioned that employers who have discriminatory hiring preferences favoring H-1B workers over U.S. workers violate federal law.

Overall, these directives are part of the Trump Administration’s mission to combat fraud and abuse in the H-1B program. Employers concerned about the consequences of these directives should contact the firm.

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