Trump Executive Orders and Proclamations Expand Information Sharing Among Government Agencies, Taking Aim at the H-1B Visa Program
In the last few months President Trump has issued a barrage of executive orders and proclamations aimed at restricting immigration into the United States, with particular aim at employment-based immigration. From a broader perspective, the wave of immigration adjustments signal a general increased scrutiny on work visa programs; scrutiny that the Trump administration hopes will curtail the purported adverse effects temporary visas holders and offshoring work may have on U.S. workers. Federal contractors and subcontractors have been no exception and H-1B employers should take heed of potential challenges to H-1B employment in the future. In a recent executive order "Aligning Federal Contracting and Hiring Practices With the Interests of American Workers," signed on August 3, 2020, President Trump focuses squarely on foreign worker employment in the performance of federal contracts in a purported effort to create more opportunities for U.S. workers adversely affected by the COVID-19 pandemic. Only 3 days earlier, the U.S. Department of Labor (DOL) announced that it had entered into a Memorandum of Agreement (MOA) with the U.S. Department of Homeland Security (DHS), acting through U.S. Citizenship and Immigration Services (USCIS) in which DOL would use information stored in databases maintained by USCIS to execute the president's policy of, "ensuring that foreign labor does not harm American workers." The August 3rd executive order and the MOA announcement follow the June 22nd Presidential Proclamation "Suspending Entry of Aliens who present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak" that not only limits the entry of individuals on certain employment-based nonimmigrant visas, such as H-1B, L, H-2B, and J visas, but also authorizes the Secretary of Labor to use investigatory authority to conduct compliance investigations of companies that use the H-1B program.
What is in the August 3rd Executive Order?
In the recent August 3rd executive order, the President requires agency heads to review the performance of contracts and subcontracts awarded in fiscal years 2018 and 2019, where contract performance is upheld by offshoring work arrangements or employees who hold temporary work visas. In their review of these contracts, agencies are directed to assess and report on whether the temporary foreign labor or offshoring practices used in these contracts affect employment opportunities for U.S. workers. Then, zeroing in on H-1B visa holders, the President orders both the Secretary of Labor and the Secretary of Homeland Security to, "take action, as appropriate and consistent with applicable law," to shield U.S. workers from the negative impacts the employment of H-1B visa holders (at job sites, including third-party jobsites) may have on wages and working conditions U.S. workers.
Laser focus on H-1B compliance
In order to more effectively execute their broader plan of increasing transparency of the H-1B program, the administration has allowed the DOL and the DHS, acting through USCIS, to cooperate and share information never previously accessed for enforcement purposes. According to a July 31, 2020 News Release issued by the DOL, the MOA entered into with DHS, acting through USCIS, will allow the Departments to share information to support DOL's Secretary-certified investigations. Such information would include data from immigrant and nonimmigrant petitions and data contained in the Office of Foreign Labor Certification's labor certifications and labor condition application databases. Under this new practice, USCIS will refer suspected employer violations that it identifies in the course of adjudicating H-1B petitions and during administrative and targeted site visits to the DOL to support the Secretary-certified investigations. The Secretary of Labor's power to investigate employer violations is authorized under the Immigration and Nationality Act; however, it has not been rigorously exercised previously. Under INA 212(n)(2)(G)(i), the Secretary of Labor can initiate an investigation if the secretary has reasonable cause to believe that the employer is not in compliance with Labor Condition Application requirements. While the timeliness of this increased collaboration seems in line with the President's efforts to protect the interests of US workers during the coronavirus pandemic, it has been touted by the DOL as "Information sharing [that] is intended to support the administration of U.S. immigration law and combat fraud and abuse in the immigration system."
Perhaps even more ominous, as it pertains to H-1B regulations and employment-based immigration, is the portion of the June 22nd Presidential Proclamation recommending the Secretary of Homeland Security, as well as the Secretary of Labor, to "consider promulgating regulations or take other appropriate action"[1]to ensure that the presence of applicants for immigrant visas under the EB-1,EB-2 program or the H-1B program do not disadvantage US workers. Such language urges DHS and DOL to make changes to already existing regulations or implement already existing regulations differently in the interest of not disadvantaging any U.S. workers. It remains to be seen what actions, if any, the DHS or DOL would take in tandem with these recommendations. Undoubtedly, if acted upon, new regulations would lead to an increase in investigations and audits aimed at sifting out abuse of the temporary and permanent work visa programs. Employers already hiring H-1B workers or interested in hiring H-1B workers can be proactive by considering prophylactic measures such as reviewing existing or proposed contracts to ensure compliance with immigration regulations, ensuring that they are adequately prepared for unannounced visits from DOL and/or DHS by reviewing current immigration applications and labor condition application obligations, and working closely with counsel when responding to agency inquiries. Taken altogether, the August 3rd executive order, MOA, and June 22nd Proclamation have created avenues for increased scrutiny of H-1B temporary worker employers. While employers of H-1B visa holders (including contractors) do not need to take any immediate action at this time, the shared access of information across agencies should prompt employers to be even more cognizant of information provided in responses to requests for evidence, information provided in USCIS administrative site visits, and even initial H-1B Petitions. Such information is now all ripe for sharing with the DOL for purposes of an investigation so it is now more important than ever to work with an experienced team of labor, employment and immigration attorneys/experts who can help avoid pitfalls. The immigration team at Buchanan Ingersoll & Rooney are continuing to monitor these changes in policy and can address any questions concerning the executive order, MOA, or the Proclamation that you may have.
[1] Proclamation at Sec. 5(b) and Sec. 5(c)(iii)