The Impact of ‘America First’ on Employment-based Immigration

Under Pressure

By Marylou Fabbo

In the year that’s passed since President Donald Trump signed the Buy American and Hire American Executive Order, there’s been increased federal scrutiny on the employment-based visa petition process that has made it more difficult for businesses to hire foreign employees.

President Trump and other critics of employment visa programs believe they displace American workers and drive down wages, while employers maintain they need foreign labor to fill jobs that Americans are not willing or qualified to fill. So far, however, the administration’s actions have taken place through heightened agency action, such as government I-9 audits and immigration ‘raids,’ rather than legislation.

Enforcement Action Substantially Increased

When it comes to employing non-immigrant workers, the message is clear: companies’ hiring practices must be able to withstand heightened scrutiny. In September 2017, Asplundh Tree Expert Co. was ordered to pay a record fine of $95 million for employing thousands of unauthorized alien workers.

The U.S. Customs and Immigration Services (often referred to as ICE) has implemented a worksite-enforcement strategy that focuses on criminal prosecution of employers, human-resources personnel, and talent officers who knowingly hire illegal workers or are ‘willfully blind’ to the same. ICE has already doubled the number of worksite-enforcement cases that it pursued all of its last fiscal year. In New England alone, ICE made more than 680 arrests during the first quarter of its fiscal year. Even companies that don’t employ any immigrants or foreign workers are subject to an ICE audit and can face significant fines and penalties for things such as failing to fully and accurately complete I-9 forms for U.S. citizens.

Number of H-1B Visa Petitions Down

President Trump’s Buy American and Hire American Executive Order is purportedly designed to increase wages, protect the jobs of U.S. citizens, and increase employment rates. Among other things, the order requires federal agencies to review and propose new rules and guidance to protect the interests of U.S. workers and to prevent fraud and abuse in the H-1B visa program. This program allows companies in the U.S. to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations typically include fields such as science, engineering, and information technology.

About 65,000 regular visas and 20,000 masters-level visas are awarded each year through a lottery system, although the ultimate goal is to switch to a point-based merit system. While ICE received more than double the amount of petitions needed to fill the quotas, the total number of petitions submitted decreased by about 10,000 from last year and has decreased more than 50% since its high in 2016. Trump’s executive order — designed to reform the H-1B visa program by making it more difficult to get such a visa — may be driving some away from using the program at all.

Spouse Employment Authorizations Likely to Be Rescinded

Certain spouses of H-1B workers may be eligible to work pursuant to an H-4 visa. However, the Department of Justice and the Department of Homeland Security have stated that they intend to rescind employment authorization for H-4 visa holders, and it now appears that at least some form of the rescission is likely to take place in the near future.

Yet, some questions remain unanswered. Will current H-4 visa holders be able to renew them? Will there be a drop-dead date after which H-4 authorization is no longer valid at all? What’s clear is that employers who hire H-4 workers need to start thinking about alternate means of legally employing them.

Tougher Standards for H-1B Workers at Third-party Locations

ICE also has increased the scrutiny on employers who petition for H-1B employees and intend to place them at third-party sites. Earlier this year, ICE issued a policy memorandum stating that, for an H-1B visa petition involving a third-party worksite to be approved, the petitioner must show “by a preponderance of evidence” that, among other things, the worker will be employed in a specialty occupation and the petitioning employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period. The third-party recipient of the H-1B worker will also have to come up with some evidence corroborating what the employer provides.

Organizations that provide H-1B workers to third parties should be prepared to respond to requests for evidence beyond what they have experienced in the past, denials of petitions, and, possibly, the granting of H-1B visas for less than the usual three-year period.

Moving Forward

Employers should expect the Trump administration to continue to aggressively pursue immigration reform. Like the visas mentioned in this article, the state of those with C-33 visas — non-immigrants who have been granted Deferred Action for Childhood Arrivals (DACA), remains up in the air, and employers that have DACA recipients with employment authorization may face the loss of the ability to continue their employment.

Companies that have not already done so should carefully review their hiring practices and evaluate alternate means of employing non-immigrant workers regardless of their current visa status. Those employers that have H-1B workers at third-party sites should scrutinize their vendors and their contracts with those third parties. And, perhaps most importantly, companies should make sure their I-9s and other immigration-based records are complete and accurate. u

Marylou Fabbo is a partner and head of the litigation team at Skoler, Abbott & Presser, P.C. She provides counsel to management on taking proactive steps to reduce the risk of legal liability that may be imposed as the result of illegal employment practice, and defends employers faced with lawsuits and administrative charges filed by current and former employees; (413) 737-4753; [email protected]