With his “Buy American, Hire American” Executive Order, President Donald Trump officially announced his intention to reform the H-1B visa program and the DOL and the USCIS are taking steps accordingly.
In April, the DOL announced it would be investigating violations of the H-1B visa program, “cautioning employers who petition for H-1B visas not to discriminate against U.S. workers . . . .” While this typically means undercutting U.S. wages by hiring foreign workers at lower pay rates for the same work, details from Secretary of Labor Alexander Acosta on the DOL side of H-1Bs show that, beyond vigorous enforcement of laws related to the program, employers can expect:
- More criminal referrals for fraud (e.g., petitioning for the individual to work in one job, then employing the person in a different role);
- More civil investigations by Wage and Hour (e.g., regarding alleged wage disparity between U.S. workers and foreign workers);
- Changes to LCA forms to create more transparency;
- More coordination of enforcement among agencies to effectuate criminal referrals to the Office of the Inspector General and to avoid duplication of efforts;
- More collaboration with DOJ and DHS to detect visa fraud; and
- Publication of investigations and prosecutions to shame and promote compliance.
Penalties for violations of H-1B LCA regulations include civil monetary fines (up to $51,000 for willful violations), restricting access to additional H-1B workers and debarment, ordering payment of back wages, and federal criminal penalties (including imprisonment for interfering with an investigation).
Meanwhile, in response to a letter from Senator Charles Grassley, the DHS has stated that it is planning to issue new H-1B regulations and release updated guidance for the agency’s policy manual consistent with the President’s executive order, including suggesting reforms to “protect the interests of U.S. workers” and “improve the H-1B visa program.” The DHS already announced it would be conducting more targeted investigations in response to some highly publicized lay-offs of U.S. workers. Lee Francis Cissna, Trump’s nominee for Director of the USCIS, already has a penchant for H-1B reform. He helped write the H-1B and L-1 Visa Reform Act sponsored by Senators Grassley and Dick Durbin. That bill focuses on enforcement and protecting U.S. workers by cracking down on alleged abuses by outsourcing firms, as well as giving priority to H-1B petitions offering higher wages, or to aliens with higher qualifications. It is important for employers to note that, during his confirmation hearing, Cissna stated that the “penalties are probably too low” for H-1B visa violations.
Jackson Lewis attorneys will continue to provide updates on changes in H-1B policies, regulations, and penalties as they become available.