President Donald Trump had campaigned on prioritizing and protecting the interests of American workers and reducing unlawful employment of aliens. In a draft Executive Order, “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs,” he promises to “restore the integrity of the employment-based nonimmigrant worker programs.” The Order sets out a basic blueprint for what to expect in terms of enforcement and changes to visa programs that grant foreign nationals temporary or permanent work authorization in the U.S. At the top of the list are fraud investigations and an expansion of on-site visa investigations that eventually will include all work visa categories.
As the Trump Administration has focused on possible abuses in the H-1B visa program that allows highly skilled workers to work in the U.S., on-site investigations likely will include increased scrutiny of LCA Public Access Files that employers are required to keep for any employees on H-1B visas. These files include required notice postings and salary information. To try to avoid fines and penalties in case of a worksite investigation, now is the time for employers to audit their LCA Public Access Files to ensure they are in good order. Check that all of the required documents are in each file, that they are properly filled out and signed, that there are no payroll discrepancies, and that the record retention policies comport with immigration regulations.
This is also a good time to check that PERM Audit Files are complete. These are files that must for kept by an employer for five years after filing a Labor Certification Request, the first step in many Green Card processes.