During election campaign, Donald Trump was a vocal critic of the H-1B system claiming that the visa program stole jobs from American workers. As the H-1B program (like many immigration programs) are in place based on Congressional law, it is a difficult task for a President to change the law or eliminate the program. (We all saw what happened with the attempt to eliminate the health care law). While the President cannot eliminate the program, there are some changes in the administration of the program that are under his control. For example, this year the government suspended premium processing for H-1B petitions.
In an attempt to further regulate the H-1B program, the Trump Administration implemented an initiative to enforce the H-1B program and to address the Administration’s concern that the program is subject to widespread fraud. These measures are primarily the Administration’s attempt to subject the program to greater scrutiny and reforms but no changes in the fundamentals of the law have been introduced.
The changes to the H-1B program are as follows:
- The government will conduct more audits of labor condition applications (LCA). When you file an H-1B petition, you are required to file a labor certification with the department of labor and the approval of this form is for the most part automated. That is, if you fill out the form correctly, you will be approved. That being said, the rules require that the employer pay the employee a certain wage and the employer must comply with a number of regulatory and notice requirements. The government has signaled that they will increase audits of H-1B employers to make sure they are complying with all of these rules and LCA requirements.
- More Site Visits to H-1B Employers. The Government has also signaled that they will increase the number of site visits to make sure that a) the company exists, b) the employee is working there and c) the employer is otherwise complying with the requirements (eg. the notice requirements). Site visits already occur but they are not that frequent. It is expected these will increase in particular for H-1B dependent employers, H-1B workers who work at third party worksites and employers that are not readily verifiable (eg. small or new companies).
- Encouragement for Whistleblowers. USCIS is openly encouraging people to inform them when they feel that a company is not complying with their H-1B obligations.
It is clear that the Trump administration is going to go to great lengths to enforce the H-1B law and we expect to see more audits and the expansion of investigations in the near and distant future. In this environment, it very important that employers have a comprehensive and effective immigration and compliance strategy in place.
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