The immigration landscape has changed in many ways during the first 6 months of the Trump administration. Below are 4 areas where our office has noticed significant changes from long established immigration practices of the US Citizenship and Immigration Services (CIS), US Department of State, (DOS), US Customs & Border Protection (CBP) and the Department of Labor (DOL):
- Challenges to Level 1 DOL wage designation for “entry-level” H-1B professional positions;
- Possible communications from DOS to the employer at the visa issuance phase confirming H-1B and L-1B worksite placement;
- Increased rate of NAFTA business visitor and TN visa challenges by CBP at the US-Canadian border; and
- Increased CIS H-1B unannounced site visits confirming terms of H-1B and possibly L-1 employment.
CIS has recently engaged in the practice of challenging H-1B CAP subject, extension and amendment petitions, by issuing Requests for Evidence (RFE’s) where the employer has designated a DOL Level 1 wage on their Labor Condition Applications (LCA’s). CIS has historically required a detailed statement from the employer describing the complexity of job duties required to be performed by the H-1B worker to justify the H-1B job’s professional nature. However, in the last several months, CIS has issued thousands of RFE’s arguing that the complexity of job duties that make the position worthy of H-1B professional worker status do not align with the Level 1 “entry-level” wage designation. CIS appears, with little transparency, to be attempting to artificially boost H-1B foreign worker wages, which it may fear are too low and harmful to US workers. Under this new practice, CIS is asserting that H-1B professional roles that appear to be too sophisticated in nature do not align with a Level 1 entry-level wage. Our office and the national immigration bar is feverishly mounting a legal strategy to dispel this unregulated practice.
Second, our clients have reported that they are receiving phone calls and emails from the DOS investigators confirming the work location and job duties of H-1B visa applicants at the Embassy prior to visa issuance. This practice seems to be more prevalent with technology firms that assign their H-1B employees to work at end client sites. If you are the employer of a contracted H-1B worker, you may answer the inquiry, but should also advise the client contracting the H-1B worker that they may be contacted directly by the DOS investigator.
Third, during the last 6 months, we have seen an increase in NAFTA business visitor and TN professional visa adjudication challenges and denials at the US-Canadian border. CBP Inspectors under NAFTA have increased their vigilance in screening business visitors and adjudicating TN applications which is in line with the Trump administration’s open criticism of NAFTA. In some cases, CBP has denied the US admission of legitimate B-1 business visitors and challenged clearly approvable TN applications. Canadian and other business visitors traveling the US for the sole purpose of attending business meetings or training may now need to consider their other visa options. Further, despite the additional costs and time, we are increasingly advising clients to file their TN NAFTA applications with CIS in the US, when feasible, rather than risk the increased scrutiny of CBP border adjudications.
Fourth, since the Spring of 2009, CIS has engaged in the practice of hiring contract investigators to perform unannounced site visits to worksites to interview H-1B employees and employers. During these visits, CIS confirms the validity of the H-1B employment to ensure it is consistent with the terms set forth in the employer’s H-1B petition.
On April 3, 2017, CIS announced that further measures, including increased site visits, would be taken to detect H-1B visa fraud and abuse under the new “Putting American Workers First” program. This CIS initiative includes a more targeted approach to H-1B site visits and includes:
- Cases where CIS cannot validate the employer’s basic business information through commercially available data;
- H-1B dependent employers (those who have a high ratio of H-1B workers as compared to US workers, as defined by statute); and
- Employers petitioning for H-1B workers who work off-site at another company or organization’s location.
Employers that do not fit the above criteria should nevertheless be prepared for an increase in CIS site visits. CIS is focusing resources where fraud and abuse of the H-1B program may be more likely, and relying on visits to determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit US workers. Further, we expect CIS to increasingly perform random and unannounced visits nationwide. With these site visits, CIS seeks to identify employers who are abusing the H-1B system, and therefore decreasing wages and job opportunities for US workers.
To further deter and detect H-1B abuse, CIS recently established an email address to encourage US and H-1B workers to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Information obtained via this email address will be used for investigations and referrals to law enforcement agencies for potential prosecution. Additionally, CIS has encouraged the reporting of allegations of employer fraud or abuse via submission of Form WH-4 to the DOL’s Wage and Hour Division or by completing US Immigration and Customs Enforcement’s (ICE) HSI Tip Form. See https://www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse for more details.
To date, CIS site visits have been rather routine, undisruptive of the work place, and have NOT yet resulted in adverse consequences for our clients. However, these unannounced visits can be surprising, to say the least, to H-1B employers and especially unnerving to the employer’s end-client, where the H-1B worker is assigned remotely. Below we have provided some simple guidelines to handle unannounced CIS worksite visits as they continue to become more commonplace. We strongly recommend that you become familiar with the below guidance as we are expecting CIS site visits to increase and your organization will likely experience such a visit:
- Ensure all H-1B employees and their direct managers know that site visits are common and that they are aware that only the company’s central point of contact for immigration matters should communicate with CIS investigators for all immigration inquiries.
- Ensure that all H-1B employees have read their approved H-1B petition as they may be asked to answer questions pertaining to the conditions of their employment (i.e., title, annual salary, place of employment, etc.) and these responses should be accurate and consistent with their H-1B petition.
- If applicable, ensure that the end-client is aware of the placement of an H-1B employee at their worksite. In the event of a CIS inspection, the end client should contact the H-1B employer’s central point of contact for immigration matters immediately upon an inspection. Further, the end client should not, and need not, answer any employment or visa sponsorship questions regarding your H-1B employee.
- In the event of a CIS site visit, note the Inspector’s name, address and all other contact information.
- Do not allow the CIS Inspector to roam the worksite without accompaniment and, if possible, have him/her remain in a single room and bring the H-1B employee to them if requested.
- During a site visit, respond only to questions asked. Please do not guess at answers you do not readily know and advise him or her that you will provide additional information once you have ascertained it.
- You must have the complete H-1B petition and approval package, as well as our blue Public Access Compliance File within easy access to refer to quickly.
- The CIS Inspector has a right to review the documentation included in our pre-prepared blue Public Access Compliance File. Please seek our counsel if documentation is requested that is not already included in the blue Public Access Compliance File. You should review and update your blue file regularly.
- Importantly, please contact us immediately if you experience a CIS site visit.
Last, it is important that you are complying with your obligations as they pertain to your sponsorship of foreign workers, whether they are H-1B, H-2B, TN, E, or L-1 (etc. all non-immigrant work authorized visa holders) status. Critically, as the employer, you must constantly monitor your foreign employees’ job title, job duties, salary, and worksite location as stated on your non-immigrant applications and support letters. If there has been a material change to the worker’s title, job duties, salary decrease, or worksite location, in most cases, you MUST file amended petitions to reflect the changes – ideally before they occur. During an audit, site visit, or investigation it is paramount to demonstrate to government officials that your approved application accurately reflects the worker’s actual work conditions.