Suspecting that employers seeking to hire foreign workers are not acting in the best interests of American workers, President Trump has requested the authority to establish fees for the adjudication of labor certifications and prevailing wage requests. These fees would be retained by the DOL. By doing this, the Office of Foreign Labor Certification (OFLC), which handles PERM labor certification, LCAs for H-1B and H-1B1 and E-3 applications, H-2A and H-2B labor certifications and prevailing wage determinations, would eventually become self-funded (like USCIS). The President’s budget proposal states that such fees would “ensure that employers proposing to bring in immigrant workers have checked to ensure that American workers cannot meet their needs and that immigrant workers are being compensated appropriately and not disadvantaging American workers.” The underlying assumption is that adding fees will protect American workers from displacement by foreign labor.
It is interesting to note that 37,000 fewer Cap H-1B cases were filed this year – down to 199,000 from 236,000 last year. In fact, this is the first time in the past five years that the number of applications has decreased. Also this year, the filing fee for H-1B petitions was increased by $135 from $325 to $460, and beginning last year H-1B dependent employers (among whom are some of the largest IT consulting firms) were obliged to pay an additional $4,000 fee. It has been reported that the decrease in Cap cases this year may be due to a reduction in cases filed by the large IT consulting/outsourcing firms. It is possible that the fee increases have been a factor and, if so, additional DOL use fees may be part of the Trump administration’s general plan to attempt to reduce abuse in the H-1B and green card process by cracking down on large IT consulting/outsourcing firms. Adding DOL fees may achieve this goal, but consulting firms may simply adapt their business models and move more jobs off-shore.
The proposed fee amounts are not yet known. The expectation is that they would be set by regulation. On the plus side for employers, expedited processing fees might become available.
Jackson Lewis attorneys will follow the budget negotiations and provide updates.