Visa reform rollout includes mandated disclosure of companies’ H-1B employees

WASHINGTON, D.C. — As part of its overhaul of the H-1B visa program, the Trump administration has issued a directive under which the U.S. Department of Labor will require all companies hiring skilled foreign professionals —the majority of them from India — to disclose how many they employ. The move is one of a number of initiatives which the administration says will remake the H-1B visa program into a skills- and merit-based legal immigration system.

“The president has laid this out: we need legal immigration. We need skills-based, merit-based immigration. Those are just a few of the issues,” said Larry Kudlow, chief economic adviser to President Donald Trump, in a recent interaction with reporters. He said if that could be achieved with the administration and the Congress working in tandem, “that would be terrific, (but) we can't seem to get it through Congress. But skills-based, and merit-based and not a family chain-based, I think they will be very useful.”

Kudlow said the merit- and skills-based requirement “is going to be a very significant change. We should've done it years ago. The president is absolutely right. H-1Bs and lots of other classifications of visas, we are looking at all of that stuff.”

The White House has vowed to work with congressional leadership to wean the program off what it describes as rampant fraud and abuse many of the outsourcing companies that now provide the bulk of these workers to leading IT firms as well as medium- and small-sized U.S. businesses.

But analysts said that by the Labor Department introducing the requirement to disclose the total number of foreigners in the workplace, it could amount to becoming “a dog-whistle” under which employers would be targeted for “heavy-duty vetting” if it were found that they employed more foreigners than American workers. Analysts also raised the possibility there would be questions about petitions employers may have filed on behalf of these H-1B workers for their green cards.

The Labor Department has the authority to either accept or deny the filed by companies as a pre-requisite to employ an H-1B applicant.

The H-1B visa application process can only go forward if the department certifies that there are no American workers with the skillset or expertise for the particular job for which the H-1B workers are being sought. Under the new requirement, the Labor Condition Application form now requires employers to provide more detailed information about H-1B worker employment conditions, disclosing all locations where H-1B workers are assigned and disclosing how many H-1B workers are likely to be at each place of intended employment.

Companies would need to identify any secondary locations using H-1B workers. The department is also asking H-1B dependent employers who claim an exemption solely on the basis of education, such as a master's degree, to provide documentation of that degree. Other revisions ask for employers to provide an estimate of the total number of foreign nationals already working in the company at each location listed in the application.

The new forms are expected to be made available in the coming weeks. In recent years, on the urging of congressional leaders, the department has taken action to combat visa fraud and abuse and encouraged American workers who believe they have been victimized or discriminated against to report such violations. Protocols were established in 2017 for referring matters related to criminal fraud to the Justice Department for investigation.

Other reforms have included the Department’s Wage and Hour Division being provided with additional tools and enforcement mechanisms to conduct civil investigations and to enforce labor protections provided by the visa programs.

These changes come in the wake of a requirement in February from the U.S. Citizenship and Immigration Services (USCIS) that employers provide detailed work itineraries for the duration of H-1B petitions involving offsite employment.

Justin Storch, director of regulatory affairs and judicial counsel at the Society for Human Resource Management, an advocacy group representing small and medium-size IT companies that has filed a lawsuit against USCIS on this issue, said in a statement, "Employers should expect renewed scrutiny on where H-1B employees are working, whether they are working at third-party sites and, if so, whether the arrangement is permissible.”

He said:"Given current scrutiny of H-1Bs, both petitioners and end users should be aware of what information is being disclosed on the forms and the fact that the Department of Labor is likely to make this information publicly available.” The Trump administration, he said, is proposing to get rid of the lottery system for visas.

Kudlow in his brief interaction with reporters also said the visa lottery would also likely be on the chopping block but did not indicate if it would also include the H-1B visa program’s additional 20,000 visa slots –which is used by applicants with a U.S. master’s degree or any other higher education from a U.S. university in STEM subjects—or only the diversity visa lottery system Trump has targeted.

In recent months, the USCIS has indicated that it proposes to make changes in the H-1B visas lottery system too.

But Kudlow made clear that the changes in the H-1B visa program does not mean any increase in its current quota of 65,000 H-1B visas annually. Calling it a “work in progress,” he said “I can’t say up. I can't say down. It's part of that overall package. I emphasize the president's view on legal immigration reform. One of the pillars of that has to be skills-based and merit-based, border security….You probably know it all.We would love to have that conversation and get a good immigration reform.”

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