"Buy American, Hire American" Executive Order

by Clark Hill PLC

On April 18, 2017 President Trump signed the Executive Order titled "Buy American, Hire American" ("Order"). The Order directs the Department of Homeland Security, Department of Justice, Department of State, and Department of Labor to review the current laws governing the H-1B program and provide a report detailing their findings and recommendations. It is important to note that the Order has no immediate impact on H-1B applications or approved petitions. Modification of the H-1B program would require a new law (House, Senate, and President approval) or rulemaking (regulations). Clark Hill does not expect any new H-1B law in 2018. Changes to the H-1B regulations would take time to go through the required processes (years).

President Trump has publicly discussed removing the random lottery process currently in place to administer new H-1B visas and instead implement a merit-based system and prioritizing the highest paid positions; the Order specifically asks for this as well. However, Clark Hill believes those changes would require a new law. Further, the Order should not have any bearing on this year's H-1B lottery selection, as U.S. Citizenship and Immigration Services (USCIS) has already conducted the lottery. Clark Hill is monitoring any further developments closely and will provide additional information as it becomes available. 

As it relates to the "Hire American" portion of the Order, the requirement to "rigorously enforce and administer the laws governing entry into the United States from workers from abroad" has been U.S. law and policy for decades, based on the section of law that was listed. Foreign nationals who come to the U.S. without a work visa, who intend to work in the U.S., are routinely denied entry and sent back to their home country. It is unclear at this time how this proposed policy would change existing activities.

USCIS & DOL Guidance on Targeted Site Visits

On April 3, 2017, USCIS announced on their website that it will take measures to "deter and detect H-1B visa fraud and abuse." Namely, it will conduct site visits to identify "employers who are abusing the system," prioritizing (1) H-1B dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by law) and (2) employers petitioning for H-1B workers who work off-site at another company or organization's location. USCIS believes "[t]argeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers." 

At this time, it is not clear if this is a change in the site visit process. The Fraud Detection and National Security Directorate (FDNS) has been conducting site visits since 2009. This is funded by an [antifraud] Fraud Prevention & Detection fee of $500 for every new or transferred H-1B petition. Site visits and employer visits are already common. 

Additionally, in April 2017 the Department of Labor (DOL) announced its plans to coordinate with other federal agencies to initiate investigations of violations within the H-1B program. However, DOL regulations limit the extent and scope of H-1B Labor Condition Application (LCA) investigations, so it is unclear how this will work in practice. Corporate clients are reminded to keep the LCA Public Access folders in order to avoid penalties. 

In order to ensure compliance with H-1B regulations and laws, we encourage employers to confirm that their employees who hold H-1B visas are, among other things, (i) working in the job location (ii) with the wage rate (iii) and in the position stated on his or her H-1B petition. If any discrepancies are detected, employers should contact their immigration counsel immediately.

H-1B Lottery Petitions Drop from Last Year

As summarized in a previous update, USCIS announced it received more than enough petitions for new H-1B visas for the 2018 government fiscal year. U.S. employers seeking visas to start in October 2017 submitted 199,000 petitions this year, 37,000 fewer petitions than last year. This was the first time in the past five years that the total number of requests decreased and, as a result, individuals should have increased odds of being selected for an H-1B visa. If Clark Hill filed a new H-1B petition on your behalf this year, we will reach out to you when we receive a notice from USCIS on whether or not your petition was selected. 

Increased Vetting at U.S. Consulates Worldwide

On March 17, 2017, the State Department sent a cable titled Implementing Immediate Heightened Screening and Vetting of Visa Applications to U.S. embassies and consulates across the world to "avert the entry into the United States of foreign nationals who may aid, support, or commit violent, criminal, or terrorist acts[.]" To enforce this policy, the cable ordered U.S. embassies and consulates to identify "population sets" that should undergo extra scrutiny before receiving visas to travel to the U.S. and scour social media accounts of visa applicants. The result of this increased scrutiny could lead to lengthier delays for certain visa applications. At the time of this alert, we are not seeing new visa processing delays.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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