The topic of immigration has become a flashpoint for many since President Trump was elected, just as it formed a major component of his platform as a presidential candidate. The focus of this article is limited to how the new Administration’s stance on immigration affects employers.
Employers that employ H-1B visa holders can expect changes in immigration enforcement. The H-1B visa is available for those who possess a minimum of a US Bachelor’s Degree or its foreign equivalent and are being offered a position in a “specialty occupation”, which is one that normally requires a Bachelor’s Degree or its equivalent at a minimum, or is so complex or unique that it can only be performed by someone with at least a Bachelor’s Degree in a field related to the position. By way of background, University of California Davis researchers have calculated that, between 1990 and 2010, H-1B workers generated 10% to 20% in annual productivity growth while adding $615 billion to the US economy.
The US Department of Labor (DOL) will now perform site visits at employers with H-1B workers due to allegations of employer fraud, specifically the hiring of foreign H-1B workers to replace US workers, especially those H-1B workers employed off-site without proper supervision. These anticipated site visits are aimed at punishing employers, not the H-1B worker, and IT companies in particular will be targeted.
Specifically, on April 4, 2017, the DOL announced its intention to perform these site visits on companies that hire H-1B workers, both before and after an H-1B visa is issued, to ensure that employers are not abusing the H-1B visa option, investigating:
•Employers whose business information is not verifiable through commercially available data
•Employers who are H-1B dependent*
•Verification that H-1B dependent employers are paying the required salary to qualify for an exemption from recruitment attestation requirements
•Employers whose H-1B workers work off-site at another company
•Employers whose H-1B workers are not being paid while in the US and are waiting for work, known as “benching”
•Employers who have been the subject of a tip: a Form WH-4 filed with the Wage and Hour Division of the DOL or HSI Tip Form filed with ICE
IT Companies Especially Vulnerable
Per the April 4, 2017 memo, IT companies who hire H-1B workers as entry-level software programmers can expect particular scrutiny. The employer must be prepared to demonstrate that the position requires theoretical and practical application of a body of highly specialized knowledge requiring a Bachelor’s Degree or higher. The position cannot simultaneously have a job classification and salary at the low end of the employer’s industry while requiring skills that are more complex and specialized, effectively underpaying the H-1B worker to the detriment of qualified US job candidates and current and former employees.
ICE’s Enhanced Capabilities
On April 11, 2017, Secretary John Kelly, Head of the US Department of Homeland Security (DHS) authorized ICE to hire 10,000 more agents and officers “expeditiously, subject to available resources, and to take enforcement actions consistent with available resources,” prioritizing for removal of criminals or those charged with a crime, abusers of any public benefit program, those subject to a final deportation order, and any, in the judgment of an immigration officer, who “otherwise pose a risk to public safety or national security.”
From an employers’ point of view, noteworthy is a priority to pursue those transporting or “harboring” three or more individuals who are not authorized to be in the US. The relevant statute, 8 USC §1324, has been interpreted to include employers who knowingly hire illegal aliens or “recklessly disregard” the fact that an employee is not authorized to be in the U.S.
Things are not getting easier for foreigners to live and work in the US, and as a result, for employers seeking to hire them. Some of the most successful former H-1B visa holders, and entrepreneurs like the founders of Google, Facebook and Apple, have met with President Trump to ask that the H-1B visa program be expanded. However, it is clear that hiring of foreign talent at the expense of US workers will not be tolerated. Site visits are a way to ensure employers are treating both US workers and H-1B visa holders fairly. With ICE’s ramped-up capabilities, employers need to be more vigilant when hiring to ensure their workforce is legal, both through meticulous I-9 practices and enrollment in E-Verify. In fact, a former high-ranking official has indicated that Congress could consider a bill requiring E-Verify enrollment for all employers early next year, and the former Assistant Director for ICE’s Office of Congressional Relations, has further advised that lawmakers are also looking at ways to make enrollment in and use of E-Verify easier and less burdensome for employers. Meanwhile, employers need to ensure that their H-1B workers truly fit into the wage level commensurate with their job title and description, supervise them properly, consider enrolling in E-Verify, and perform I-9 identity verification/employment authorization on new hires and keep meticulous records, subjecting the latter to an annual internal audit.
*25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or
26 – 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or
51 or more full-time equivalent employees of whom 15 percent or more are H-1B nonimmigrant worker