USCIS Trusted Employer Programme: some recommendations

Background
GAO study
Recommended draft rules
Recommendations for stakeholder coordination

Background

In January 2011 the Government Accounting Office (GAO) issued a report(1) to Congress laying out a series of proposals for reform of the H-1B temporary worker non-immigrant visa programme. Among its recommendations was a proposal that US Citizenship and Immigration Services (USCIS) establish a Trusted Employer Programme system for US companies with a clean record of compliance with immigration laws which are willing and able to meet fully requirements as model US employers of foreign nationals.

The programme proposed is similar to the Trusted Traveller Programme for foreign visitors and visa holders who frequently enter and exit the United States. That system allows pre-registered and screened foreign visitors to travel in and out of the country without fingerprinting and other intrusive security measures and delays. The programme has been judged to be a success by US security officials and the travelling public alike.

This update lays out a specific set of proposed duties and privileges that might stem from the Trusted Employer Programme, and suggests steps to build stakeholder consensus, a role for industry self-policing and implementation of the programme in the near future.

Selection for the Trusted Employer Programme would impose duties on the participating company, but would carry the benefits of a streamlined, more predictable application process for such trusted H-1B employers.

GAO study

The report proposes that Congress re-examine key H-1B programme provisions and make changes to legislation. The GAO also recommends that the Departments of Homeland Security and Labour take steps "to improve efficiency, flexibility, and monitoring" of the H-1B programme. The Department of Homeland Security responded with two recommendations and one objection, "citing logistical and other challenges", while the Department of Labour offered no response.

In addition to the proposal for a USCIS Trusted Employer Programme, the GAO issued a critique of the existing programme, calling for a series of steps to be taken to ensure the integrity of the H-1B system. Some of the solutions proposed are administrative and technological, such as tying the Department of State into the new Department of Homeland Security databases being developed under the transformation programme. The GAO summary(2) also offers a number of specific programmatic changes that would change the rules of the programme or substantially alter how the H-1B programme works for employers,(3) including the following.

The GAO has urged Congress to review the H-1B programme and its purposes and requirements:

"Such a review may include, but would not necessarily be limited to (1) the qualifications required for workers eligible under the H-1B program, (2) exemptions from the cap, (3) the appropriateness of H-1B hiring by staffing companies, (4) the level of the cap, and (5) the role the program should play in the U.S. immigration system in relationship to permanent residency."

The report also discusses major re-engineering of the H-1B programme to give USCIS more complete jurisdiction over the process:

"To reduce duplication and fragmentation in the administration and oversight of the H-1B application process, consistent with past GAO matters for congressional consideration, Congress may wish to consider eliminating the requirement that employers first submit a Labor Condition Application (LCA) to the Department of Labor for certification, and require instead that employers submit this application along with the I-129 application to the Department of Homeland Security's U.S. Citizenship and Immigration Services for review."

At the same time that it recommends giving USCIS initial review over LCAs, the GAO also says that the Department of Labour should be granted enhanced statutory authority to initiate and carry out its own investigations of suspected compliance issues:

"To improve the Department of Labor's ability to investigate and enforce employer compliance with H-1B program requirements, Congress may wish to consider granting the department subpoena power to obtain employer records during investigations under the H-1B program."

In addition, this report suggests that the LCA compliance requirements be extended to third-party employers at worksites where H-1B are assigned:

"To help ensure the full protection of H-1B workers employed through staffing companies, Congress may wish to consider holding the employer where an H-1B visa holder performs work accountable for meeting program requirements to the same extent as the employer that submitted the LCA form."

Another change to the LCA process that the GAO urges is a new centralised online posting requirement for all LCAs:

"To improve the transparency and oversight of the posting requirement on the Labor Condition Application (LCA), as part of its current oversight role, the Employment and Training Administration should develop and maintain a centralized Web site, accessible to the public, where businesses must post notice of the intent to hire H-1B workers. Such notices should continue to specify the job category and worksite location noted on the LCA and required by statute on current noncentralized postings."

The GAO offers a series of reforms intended to streamline the process for employers, including implementation of the Trusted Employer Programme:

"To address business concerns without undermining program integrity, U.S. Citizenship and Immigration Services should, to the extent permitted by its existing statutory authority, explore options for increasing the flexibility of the application process for H-1B employers, such as (1) allowing employers to rank their applications for visa candidates so that they can hire the best qualified worker for the jobs in highest need; (2) distributing the applications granted under the annual cap in allotments throughout the year (e.g. quarterly); and (3) establishing a system whereby businesses with a strong track-record of compliance with H-1B regulations may use a streamlined application process."

Recommended draft rules

The report recommends the following:

"Definition of Trusted Employer:

1.) Characteristics and requirements of a Trusted Employer shall include the following:

a.) Company registration and employment verification in the federal E Verify employment authorization and identity check system for all new employees, including H-1B and other nonimmigrant workers.

b.) Confirmed company valid Federal Tax ID, State tax and documentation of full compliance with current local business licensing requirements

c.) For companies that have been in operation for three or more years, tax returns and withholdings demonstrate sufficient revenues and a history of payment of sufficient wages to justify allowing employment of additional H-1B workers. While substantial net profitability need not be demonstrated, a history of viable and sustained business operation and payment of wages must be shown. Start-ups shall show sufficient capitalization to justify the hiring of H-1B workers and the ability to pay the wage offered.

d.) No criminal convictions against company or its officers for compliance violations in the areas of immigration, labor regulations, Internal Revenue and State taxation.

f.) If the prospective TE company has a foreign Headquarters, the U.S. Consul in that jurisdiction shall be notified and issuance of nonimmigrant employment-related visas issued to beneficiaries under the TE program shall be conditional upon maintenance of TE status designation.

g.) A designated TE status company, regardless of whether it is based in the US or a subsidiary of a foreign-based corporation, shall maintain staff inside the U.S. with a ratio of 50 percent or greater U.S. Workers as defined at 8 U.S.C. §1182.

h.) All designated TE companies shall be open to outside audits and inspections of their premises twice each calendar by FDNS/ICE/DOL and shall be fully cooperative with Inspectors.

i.) All H-1B petitions and Labor Condition Attestations (ETA Form 9035) submitted by a designated TE status company shall reflect a wage that is 110% of prevailing wage, or the Prevailing Wage Level II, whichever is greater.

j.) Any lay-offs of US workers in same or similar occupations or strikes of such employees of the petitioner in the same location shall lead to a suspension of TE status privileges for new H-1B hires for a period of six months following the date of suspension. TE companies shall notify USDOL/ETA in writing of any lay-offs or strikes within 30 days of the commencement of any such occurrence, if it is unable to resolve the labor dispute or rehire all laid-off US workers.

k.) All designated TE companies shall certify that they conduct recruitment for positions filled by H-1B workers by a transparent and good-faith U.S. recruitment program that includes on-line public-facing posting of LCAs, along with maintenance of documentation of all advertisements and recruitment steps taken for the position offered to the beneficiary. In locations where unemployment levels are determined by the BLS to exceed six percent for the same or similar occupation must list the position through the local SESA office for a thirty day period prior to filing the LCA.

l.) A designated TE company shall develop and have in-place a detailed training program to re-train U.S. workers who may be impacted by layoffs.

m.) A designated TE company must certify that the company has not outsourced to another country same or similar positions to be held by the H-1B beneficiary during the six month period prior to submission of the LCA."

Recommendations for stakeholder coordination

The process of developing USCIS and stakeholder consensus regarding the rules and processes that will guide the Trusted Employer Programme is essential to its success and maximising its effectiveness. Consistent with USCIS Director Mayorka's agenda regarding the desirability of stakeholder participation in substantial changes in programmes impacting agency customers,(4) USCIS should make every practical effort to maximise stakeholder input on the Trusted Employer Programme. Stakeholder input should extend to all interested parties, including the American Immigration Lawyers Association and other immigration lawyer groups, as well as affected industry and others interested in designing a Trusted Employer Programme that carries into effect the most positive elements of the GAO report while assuring congressional confidence in the integrity and benefits of the H-1B system.

In addition, the Trusted Employer Programme should be designed from its inception with the electronic filing process envisioned and enabled through USCIS transformation.(5) The online filing and document transfer capabilities will make it possible for (and essential that) USCIS and the users of the Trusted Employer Programme work together to devise a system that allows for the most efficient, comprehensive but least burdensome system of application, adjudication, compliance and auditing for programme participants.

USCIS should coordinate with stakeholders to develop a clear rules-based system with minimal ambiguity and room for misinterpretation or abuse. This is in the interest of all parties and may have the benefit of developing consensus between USCIS and its customers regarding issues where policy interpretation of regulation and operating instructions has differed or created conflict.

Given that the USCIS transformation is already well advanced, stakeholder engagement in any proposed Trusted Employer Programme application process should be carried out as part of the implementation of transformation. In addition to the H-1B policy unit, development of the Trusted Employer Programme will involve coordination of the Office of Transformation Coordination and the Office of Public Engagement.

As with the implementation of e-filing, the Trusted Employer Programme should also follow a notice and comment rulemaking process which would include the following steps:

• a series of meetings with stakeholders to identify issues and areas of consensus;
• publication of a proposed rule that would allow initial implementation of the Trusted Employer Programme;
• receipt of public comments about that rule;
• review and reconsideration of the proposed rule after experience with the programme under interim rules and in view of suggestions made by the public; and
• publication of a final rule which responds to public comments.

Ideally, the initial roll-out of the Trusted Employer Programme should follow as closely as possible the first release of the new online USCIS filing system (expected to deploy in December 2011). The new system will introduce customer accounts for individuals seeking immigration benefits. The first benefit available for filing through the online system will be standalone Form I-539 (Application to Extend/Change Non-immigrant Status). While it is not yet known when USCIS will finally allow online filings for H-1B, there is no reason to delay implementation of the Trusted Employer Programme until that development occurs. The Trusted Employer Programme filing form and rules of adjudications should be made as simple and easy to implement as the framework of the USCIS online process will allow.

The transformation initiative will allow applicants to submit information and manage their benefit requests while also enabling USCIS to access all available information about a customer in a single, online location and to streamline procedures for managing information. The consultation and policymaking processes should be expedited so as allow the earliest possible programme roll-out date.

Endnotes

(1) See GAO, "H-1B Visa Program: Reforms Are Needed to Minimize the Risks and Costs of Current Program" (GA0-11-26, January 14 2001): www.gao.gov/new.items/d1126.pdf.

For further information on this topic please contact Rami D Fakhoury at Fakhoury Law Group PC by telephone (+1 248 643 4900), fax (+1 248 643 4907) or email ([email protected]).