Day 2 : Global Immigration Conference

Stay out of trouble: 7 key steps an employer needs to take on Trump’s

Buy American, Hire American executive order

Key Steps Employers Should Take on Trump’s “Buy American, Hire American” Executive Order

• Rohit Turkhud

Agenda

1. Overview of Executive Order

2. Impact of Executive Order

3. Updates to the Foreign Affairs Manual

4. Other Immigration Policy Changes

5. Enhanced Compliance and Site Visits

6. Steps Your Company Should Take in response to the Executive Order and Trump Immigration Changes

Presidential Executive Order on Buy American and Hire American

• On April 18, 2017, President Donald Trump signed an Executive Order titled, “Buy American, Hire American.”

• In the "Hire American" portion of the order, Trump announced he was directing DOL, DOJ, DHS, and DOS to review the current laws governing the H-1B program and suggest changes to prioritize the most skilled and highest paid positions. • This is consistent with some of the legislative initiatives including SB2266 and HR5657 as well as Trump’s interview

on 1/17/17.

• The President also indicated he was directing federal agencies to review all visa programs and take prompt action to crack down on fraud and abuse in order to protect U.S. workers.• Executive Order states, “In order to create higher wages and employment rates for workers in the United States,

and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).”

• This follows and is in accordance with the notices found in memoranda from DOL, DOJ, and DHS where the various agencies announced that they would impose greater scrutiny on the H-1B program.

Impact of the Executive Order

• The Executive Order will have no immediate impact on H-1Bs. Many of the changes to the H-1B program contemplated by the Administration would require legislative action or rulemaking and would take time to go through the necessary processes.

• If legislative action is taken, it is more likely that the lottery system will be removed for a merit based system. • Trump stated, "Right now, H-1B visas are awarded in a totally random lottery and that's wrong. Instead, they

should be given to the most skilled and highest paid" and should "never, ever be used to replace Americans.“• USCIS could more heavily scrutinize employers who rely heavily on H-1B visa holders. • The administration stated that outsourcing companies would likely have fewer visas approved as the administration’s

changes are adopted. • Solutions:

• Companies should use higher rates of pay. • Companies may want to consider hiring more U.S. workers or acquiring companies with more U.S. workers.

Executive Order Language Updated in the Foreign Affairs Manual• The Foreign Affairs Manual (FAM) was updated for H, L, and O visas to state that, “On April 18, 2017, the President signed the Executive

Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(H) must be adjudicated.”

• The FAM and associated Handbooks (FAHs) are an authoritative source for the Department of State’s (DOS) procedures that govern the operations of the State Department, the Foreign Service and other federal agencies.

• The FAM conveys codified information so DOS staff can carry out their responsibilities in accordance with statutory, executive and Department mandates.

• As such, the Executive Order may have an impact on how visas are adjudicated at the consulates abroad.

USCIS, DOL, and DOJ Announcements Regarding H-1B Fraud and Abuse

USCIS Announcement • On April 3rd, USCIS proclaimed that it would initiate multiple measures to deter and detect H-1B visa fraud and abuse.• The announcement declared that USCIS will take a targeted approach by more highly scrutinizing H-1B-dependent employers,

and employers petitioning for workers who will work off-site at another company’s location. • USCIS will increase targeted site visits for these types of employers.• The announcement stresses the importance that employers select the correct wage levels and SOC codes for the position

listed on the H-1B petition. Also, it is highly important that employers comply with the LCA attestation requirements, where violations could lead to civil monetary penalties imposed for each violation by the DOL Wage and Hour Division.

DOL Announcement• DOL will initiate investigation of H-1B program violators through greater coordination with other federal agencies;• Consider changes to the LCA process for greater transparency; and• Engage with stakeholders on how to improve the program.

DOJ Announcement• The DOJ cautioned employers petitioning for H-1B visas not to discriminate against U.S. workers.

Changes in Adjudication for Level 1 for H-1B Petitions• On March 31, 2017, USCIS released a policy memorandum (PM) titled, “Rescission of the Dec. 22, 2000 ‘Guidance memo on H-1B

computer-related positions’” which supersedes and rescinds the Dec. 22, 2000, memorandum titled "Guidance memo on H-1B computer-related positions.“

• One of the reasons for the rescission is the OOH has been revised multiple times since the 2000 memorandum was issued, so the2000 memorandum is no longer based on relevant data. USCIS concluded that based on the OOH, most computer programmer positions would not qualify for the H-1B category.

• The March, 2017 Policy Memorandum:

• Concludes a Level 1 (entry level) designation for a position, covered under the computer programmer occupation classification, would not qualify as a specialty occupation position.

• Indicates officers should scrutinize the wage level on the labor condition application (LCA) to make sure wage levels correspondto job duties and a Level 1 LCA will contradict the notion that duties are complex.

• Affirms the petitioner must to show the position is a specialty occupation and the OOH, alone, will not be enough to prove the position is a specialty occupation and USCIS may look more at the proposed job duties when determining the complexity to determine whether the position is a specialty occupation.

• Specifies that merely requiring a degree for the position, without more evidence, does not, in and of itself, support the notionthat the position is a specialty occupation.

Increased Site Visits

• Following the Executive Order, there has been an increase in the number of USCIS site visits.

• The USCIS Administrative Site Visit and Verification Program has Fraud Detection and National Security (FDNS) officers make unannounced visits to collect information as part of a compliance review.

• USCIS announced that they would take a more targeted approach to site visits and focus on:• Cases where USCIS cannot validate the employer’s basic business information through commercially

available data;• H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as

defined by statute); and • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

• USCIS established an email address for individuals (both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse.

Steps Your Company Should Take in response to the Executive Order and Trump Immigration Changes

1. Anticipate More Site Visits• Trump’s Executive Order for federal agencies to crack down on fraud and abuse has resulted in increased site visits

2. Prepare for enhanced scrutiny at the border and/ or consulates on whether a U.S. worker can perform the job• With the Executive Order being incorporated into the FAM and direction to CBP officers, anticipate additional scrutiny

3. Limit use of Level 1 Wage Level for H-1B Petitions• FY 2018 RFE’s have seen numerous RFE’s on whether a position filed with a level 1 wage can be a Specialty Occupation

4. Anticipate forthcoming legislation on a potential “Merit-Based System”• Several Legislative Initiatives have been introduced with this concept

5. Expect a potential raising of the Prevailing Wage• Currently, H-1B dependent employers may be exempt from additional obligations like non-displacement and recruitment if the

pay $60,000. This hasn’t been raised since 1990, even for inflation. Raising the prevailing wage would help U.S. Workers.

PANELIST DISCUSSION

Thank You