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USCIS and U.S. DOJ Signal Efforts to Tighten Control Over the H-1B Visa Program

Author: Stephen H. Smalley (Raleigh)

Published Date: April 5, 2017

United States Citizenship and Immigration Services (USCIS) and the Immigrant and Employee Rights Section of the U.S. Department of Justice’s Civil Rights Division (DOJ-IER) issued statements signaling their cooperation with President Trump’s plans to restrict the H-1B visa program for highly-skilled workers.

In a press release yesterday, USCIS announced new measures to increase its policing of employers who employ H-1B visa workers. Specifically, USCIS will implement a targeted approach for its future H-1B worksite visits that focuses agency resources on the administration’s enforcement priorities. Effective immediately, USCIS will prioritize the following types of worksite visits by its Fraud Detection and National Security officers:

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data
  • Cases filed by H-1B-dependent employers (i.e., those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute)
  • Cases filed on behalf of H-1B employees placed at off-site, third-party worksite locations

USCIS noted that it will continue random and unannounced worksite visits nationwide and confirmed that these visits “are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system.” USCIS also created an email address where individuals may submit tips, report alleged violations, and submit other relevant information about potential H-1B noncompliance, to be used for investigation and potential prosecution.

In a related release, DOJ-IER cautioned H-1B employers that the antidiscrimination provision of the Immigration and Nationality Act (INA) prohibits employers from discriminating against U.S. workers due to their citizenship or national origin in hiring, firing, and recruiting practices. Specifically, DOJ-IER warned employers that a discriminatory hiring preference favoring H-1B visa holders over U.S. workers would violate the INA.

The USCIS and DOJ-IER statements were released the same day that USCIS began accepting H-1B petitions for the next fiscal year beginning October 1, 2017. The H-1B visa program, created more than 25 years ago, allows U.S. companies to temporarily employ a limited number of highly skilled foreign workers in fields such as science, engineering, and information technology each year. The H-1B visa program has received increased attention due to calls by President Trump and Congress for U.S. immigration reform.

Key Takeaways

H-1B employers may see an increase in worksite visits by USCIS’s Fraud Detection and National Security unit, especially if they fall within one of the three USCIS priority categories. Since the purpose of worksite inspections is to verify the information provided by H-1B employers in their immigration petitions and make sure that H-1B employees are complying with the terms of their admission, employers that proactively monitor changes in the worksite locations of their H-1B employees or other material changes in employment that may require an amended petition will increase the likelihood that they remain compliant and prepared for possible worksite visits.

Stephen H. Smalley  (Raleigh)

Stephen H. Smalley
Mr. Smalley is the Managing Director of Emigra Ogletree Worldwide, a partnership of two leading firms, Ogletree Deakins and Emigra. Emigra Ogletree Worldwide provides a single-source for global and U.S. immigration services. Emigra Ogletree Worldwide brings unique advantages to our clients while providing seamless and consistent immigration services throughout the world. As Managing Director, Mr. Smalley oversees the day to day management of the organization, including oversight of work visa...

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