On Thursday, April 18, 2019, USCIS held a listening session to discuss the progress of implementing President Trump’s Buy American and Hire American (“BAHA”) Executive Order aimed at strengthening protections for U.S. workers. The session marked the two-year anniversary of the BAHA Executive Order and sought feedback from several members of the public and government, who shared the same anti-immigration sentiment, in order to determine the effectiveness of its implementation. Led by Kathryn S. Rexrode, the Associate Director External Affairs Directorate of USCIS, the session included top USCIS officials such as: Mr. Lee Francis Cissna, Director of USCIS; Ms. Mary Thompson, Assistant Deputy Attorney General of Department of Justice; Molly Conway, Deputy Chief of Staff of the Secretary of Labor and Acting Assistant Secretary Employment and Training Administrator; and several others
The session outlined several policy memorandums implemented to date by the administration designed to achieve the goals of the BAHA Executive Order. These new rules and guidance are not only complicating the difficulty of obtaining H-1B visas, but also affect H-2B, L-1 and TN visa categories, greatly disturbing outcome predictability with increasing Requests for Evidence and denials.
USCIS’ memorandum consist of the following policies:
- Requiring employers to provide onerous contracts and itineraries for H-1B beneficiaries placed at third party worksites;
- Rescinding prior memorandums to now apply the same level of scrutiny in adjudicating continuing employment requests as applied to initial employment requests;
- Ensuring correct training fees used to train U.S. workers are paid by certain H-1B petitioners;
- Amending H-1B Cap selection process to increase the chances of beneficiaries with U.S. Master’s degree or higher being selected;
- Complicating calculation of the one-year foreign employment requirement and irrevocable proxy vote regarding company control for L-1 non-immigrant visas;
- Proposing modernizing H-2B recruitment requirements; and
- Restricting the eligibility of NAFTA TN status for economists.
Non-Government Members Comments
Towards the end of the listening session, we heard from non-government members who praised the administration for the policies implemented to date, but called for the implementation of even more extreme measures. The audience members participating in the comments were largely one-sided, notwithstanding a general distain regarding BAHA from immigration law stakeholders.
For example, several commentators to suggested rescinding the STEM OPT extension program, claiming that only one year is truly needed for a student to gain the proper training necessary for employment. They proposed extending site visits to companies training OPT student to observe if these students are really being trained and not employed. One commentator claimed OPT is killing opportunities for American students in employment or internships as OPT offers employers a 15% tax break for OPT hires. We vehemently disagree with these statements. Only one commentator emphasized the benefit and importance of retaining OPT students who possess specialized knowledge in complex fields from their studies at American Universities and colleges.
Other commentators expressed concern with a so-called national security risk imposed by the H-1B program, fearing American personal information is being shared with foreign countries whether offshore or through foreign employers.According to these public members, more needs to be done to accomplish the BAHA objectives. Again, we have seen no evidence of this.
The agencies did, however, provide some updates regarding statistics and new initiatives.
In more recent time, USCIS created fraud reporting tip lines to enhance immigration fraud and abuse detection pertaining to the H-1B and H-2B programs. Since March 31, 2019, USCIS received over 7,000 tips alleging H-1B fraud and roughly 700 tips alleging H-2B fraud, which resulted in several leads. Furthermore, USCIS has enhanced the targeted Administrative Site Visit and Verification Program, where officers make unannounced visits to collect information as part of an immigration law compliance review. In 2018, roughly 40% of H-1B site visits resulted in fraud determination and 18% of L-1B site visits resulted in fraud determination.
On April 1, 2019, USCIS launched the H-1B Employer Data Hub to illustrate the hiring practices of employers who petition for foreign national workers by making information about these petitioners available to the public. These data sets include information regarding the petition approval and denial rates per petitioner as well as information regarding the countries of origin and gender of the foreign national workers in the following non-immigrant worker visa categories: H-1B, H-2B, L-1A and L-1B. Additionally, USCIS is providing an overview of categories for which Employment Authorization Documents (EAD) are issued to foreign nationals. USCIS anticipates to update the H-1B Employer Data Hub on a quarterly basis.
Currently, the data reveals an overall growth in continuing employment petitions for which 83% filed are on behalf of Indian foreign nationals. As previously discussed,Indian Nationals, in particular, rely on the H-1B Program for ongoing employment authorization and status due to the prolonged backlogs they face in obtaining employment based Green Cards. Many are also finding the need to file requests for extensions sooner as USCIS is increasingly shortening validity periods. The data supports the expected continued increase in Request for Evidence (RFE) rates as a result of this Executive Order, which are highest during the 1st quarter of a fiscal year with the rate in 2019 being the highest ever.
Department of Labor Updates
The DOL focused on a discussion regarding its modification to the Labor Condition Application (LCA) by burdening employers to provide further information regarding the proffered employment. Back in November 2018, the DOL changed the LCA to include secondary entity detection information and for H-1B dependent employers to inform the DOL on which exemption they are claiming. If the foreign national is exempt as a result of their degree, the employer must now provide a copy of the degree to the DOL. At this time the DOL reports that 99% of dependent employers rely on the $60,000 annual wage threshold. To combat the failure to adhere to this threshold, the DOL reported the most common remedy awarded to U.S. workers not properly hired for job or to foreign national workers not paid the prevailing wages as backwages. In 2018, over 975 nonimmigrant visa cases were received in which $18.2 million were paid in back wages and $6.1 million were paid by companies in civil penalties.
Department of Justice Updates
In May 11, 2018, the DOJ Civil Rights division launched a protection of U.S. workers initiative which targets, investigates, and brings enforcement against companies that discriminate against U.S. workers in favor of foreign nationals. A Memorandum of Understanding was issued to strengthen information sharing between the Department of State, Labor and Justice in efforts to eliminate immigration fraud, abuse and discrimination.The agencies are focused on employers who prefer to hire temporary foreign visa workers as these employers may be discriminating against available and qualified U.S. workers.