US Warns It Will Prosecute Employers Who Overlook American Employees

US Warns It Will Prosecute Employers Who Overlook American Employees

Although the latest round of H-1B visa applications opened on Monday without any rule changes from President Donald Trump or his administration, the Department of Justice is warning US employers that it will investigate and prosecute companies that hire foreign talent through the skilled worker visa program while overlooking qualified US citizens, the Associated Press reports:

“U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims,” Tom Wheeler, acting head of the Justice Department’s Civil Rights Division, said in a statement. … U.S. Citizenship and Immigration Services also announced that it would step up its reviews of employers that use H-1B visas, saying “too many American workers who are qualified, willing and deserving to work in these fields have been ignored or unfairly disadvantaged.”

According to Politico, US Citizenship and Immigration Services intends to give the most scrutiny to outsourcing firms that employ workers on H-1Bs to work elsewhere, which account for the lion’s share of visa applications each year and which rely heavily on the program. Trump is also reportedly looking at other ways to use his presidential powers to enforce H-1B regulations more stringently.

In addition to the president himself, the driving force behind this initiative is likely Attorney General Jeff Sessions, a former Republican senator from Alabama who like Trump has been a fierce critic of the H-1B program, Computerworld’s Patrick Thibodeau adds:

The Justice Department office that handled discrimination cases had long been called the Office of Special Counsel. It was since renamed by Sessions to the Immigrant and Employee Rights Section. John Trasvina, who was special counsel from 1997 to 2001, said that even then “there was serious congressional concern about the danger of high-tech employers favoring H-1B holders over U.S. engineers.

“Little has changed over that period of time – the industry has grown dramatically in significant part because of the contributions of H-1B visa holders, employers maintain that they can’t find U.S. engineers, and laid-off or older engineers say they are passed over for younger, cheaper and widely available engineers either trained in U.S. colleges or trained abroad,” said Trasvina, who is dean of the University of San Francisco School of Law.

Another change that has made employers nervous is a policy memorandum issued by USCIS on Friday that was widely reported as removing “computer programmer” from the list of occupations eligible for H-1Bs. In fact, as Engadget’s Cherlynn Low explains, the memo “instructs employees to stop relying on what it calls an outdated handbook to determine if an applicant’s job qualifies as a specialty occupation, but it does not deny them altogether”:

Not only that, the memo is really only meant to bring specifically the USCIS’ Nebraska Service Center, which stopped processing H-1B paperwork for close to ten years, up to speed. Other service centers had already been using the updated policies for assessing a candidate’s qualifications. …

The handbook that the memo in question refers to accepted those with two-year associate degrees as qualified candidates for jobs as computer programmers. The updated guidelines don’t preclude self-taught individuals from getting the visa, but it does mean they will have to provide more supporting evidence to demonstrate their ability and knowledge of the specialized skill.

Computerworld’s Thibodeau also notes that the administration is “actively reconsider[ing]” a regulation created by the Obama administration that granted some holders of H-4 visa (the visa granted to spouses of H-1B holders to allow them to live together in the US) permission to work. According to court documents filed on Monday in the now-notorious case brought by former Southern California Edison (SCE) IT workers who allegedly were forced to train H-1B visa holders to replace them in 2015:

[The administration] is asking the court to give it until September to consider changing the H-4 work authorization rule. This is becoming a high-stakes case for approximately 180,000 spouses of H-1B visa holders who gained the right to work in 2014. These are spouses of H-1B visa holders who are seeking a green card. …

The SCE IT workers are challenging an executive order by President Barack Obama. The plaintiffs said the spouse work authorization rule was designed to “increase the supply of foreign labor in the United States” and complicates their job search. The plaintiffs lost in federal district court but appealed. On February 1, the Trump administration asked the appellate court for a 60-day abeyance “to allow incoming leadership personnel adequate time to consider the issues.” The court granted it.

Both supporters and detractors of the H-1B program agree it has problems that need to be fixed, but Issie Lapowsky at Wired hears from both sides that they don’t expect the Trump administration’s approach to make much difference in resolving these more fundamental issues:

H-1B detractors say the new rules do little to address those devious practices. Under the new guidelines, immigration officials will ramp up unannounced visits to firms that depend on H-1B visas for the majority of their workforce or that place workers in jobs at third party companies. The idea, the agency says, is to find employers that are “are evading their obligation to make a good faith effort to recruit US workers.” The agency has created an email address where concerned citizens can report suspected violations.

These efforts may superficially appear to target outsourcers. Yet Morrison argues that much of what these companies are doing is legal. “Catching fraud is a good thing, but the problem with outsourcing is not fraud,” he says. “The problem is in the law.”

Meanwhile, Miriam Jordan reports at the New York Times that H-1B applications are pouring in even greater numbers than usual, as employers worry about future changes to the program:

When the gates swung open at the government processing center here on Monday, the first truck in line, a FedEx rig, carried 15,000 packages, said a courier, Andrew Langyo. “We’re loaded, and we have more trucks coming,” said Mr. Langyo, who would return two hours later in the same truck with another haul. Last year, the government received 236,000 applications in the first week before deciding it would accept no more. …

Even before the memo and the Justice Department’s warning, fears about the future of the H-1B program were making this year more pressure-packed than most. “Just to make sure the petitions get in, almost every client demanded that theirs arrive on the first day,” said Greg McCall, a lawyer at Perkins Coie in Seattle who prepared 150 applications.