About one year ago, President Trump signed the “Buy American Hire American” (BAHA) Executive Order to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” Under the auspices of BAHA, the U.S. immigration landscape has seen many changes in rules, policies, and operations in the past year. Below, are some of the key changes as well as anecdotal trends we’ve noticed so far.

  • There has been an increase in sharing of information between the Department of State, the Department of Labor, and the Department of Justice designed to combat and prevent immigration fraud. This is in line with the Administration’s goal to continue to streamline existing and new processes in the immigration system.
  • President Trump has mentioned a need to revamp the H-1B visa category. As such, USCIS has made available two email addresses, one for the H-1B category and the other for the H-2B category, encouraging anyone to report allegations of fraud. This will likely lead to an increase in reports of alleged fraud (primarily by disgruntled ex-employees) and resulting investigations. Due to the active information sharing between agencies, a case that begins with the U.S. Department of Homeland Security could lead to a second investigation started by another agency, such as the DOL, who could initiate a wage and hour investigation.
  • Pursuant to BAHA, there will be an increase in employer site visits to confirm H and L visa related jobs. USCIS has indicated it may expand the scope of their visits to include L-1B Specialized Knowledge petitions. To start out, USCIS will focus on L-1B employees who will spend much of their time off-site at third-party client sites.
  • USCIS has been offering a wider variety of reports and data about work visas to the public in the interest of providing more transparency to U.S. workers.
  • In just one year, USCIS has issued five separate Policy Memoranda related to the H-1, L-1, and TN visa categories.
  • Regarding I-9 enforcement, more employers are expected to get a visit from the government for an audit of their Forms I-9. While anecdotal evidence does not yet point to a big surge in the number of audits this year, smaller companies are being targeted just as often as big companies. Historically, the government tended to go after the bigger companies; however, a growing number of small- to medium-sized companies have reported being visited by the government within the last year. This underscores that every employer is fair game, and should have a solid, compliant I-9 procedure in place before the government visits.
  • Anecdotal evidence also suggests an uptick in investigations coming out of the Immigrant and Employee Rights Section (IER), which investigates alleged unlawful discriminatory practices by employers. Note that once again small companies seem to be just as likely to be selected for an investigation. Additionally, the IER appears to be focusing its investigations on claims of employer practices that seem to prefer certain categories of foreign workers over U.S. workers (e.g., H-2B workers). Further, they are continuing to go after employers who have a high percentage of List A documents being presented by their employees during the I-9 process. They receive this information through the E-Verify monitoring unit and have continued to actively pursue these cases.

Hopefully, all these changes and trends make clear that now is a good time to review your company’s immigration practices and procedures and get them in order, especially if you have foreign national workers with U.S. work visas. Even if your company does not routinely hire foreign nationals, you are still subject to immigration laws that you must comply with, most notably the ones relating to the Form I-9. Taking a proactive stance and consulting with a legal professional on what should be reviewed and put in order now is critical to avoiding bigger issues down the road.