• Department of Labor and Department of Homeland Security Introduce Immigration and Worksite Policy Changes
  • September 18, 2017
  • As with all incoming Presidents, new White House Administrations bring new policy changes. Especially given President Trump’s focus on immigration policies during his candidacy, there have been substantial changes that impact U.S. businesses and employees.

    On April 18, 2017, President Trump issued an Executive Order entitled “Buy American and Hire American,” in which he directed Secretaries in his administration to place a focus on assisting and prioritizing American businesses and employees. Specifically, under Section 5 of the Executive Order, President Trump directed the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to “propose new rules and issue new guidance…to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”

    Since that time, the Department of Homeland Security has moved forward with implementing changes to the immigration system. These changes include:

    • Redesigning work authorization and permanent resident cards (“green cards”) on May 1, 2017, to better conform to security measures,

    • Implementing a new Form I-9 on July 17, 2017; employers will need to use the new Form I-9 starting on September 18, 2017,

    • U.S. Citizenship and Immigration Services (USCIS), the department under the Department of Homeland Security involving immigration benefits, not allowing premium processing of new cap-subject H-1B petitions during the H-1B filing cycle, a departure from the agency’s position on premium processing in previous years.

    The Department of Labor (“DOL”) has also taken steps toward increased immigration enforcement, issuing a press release on June 6, 2017 in which it stated that it would “aggressively confront visa program fraud and abuse.” Some of the DOL’s proposed changes include changing the Labor Certification Application, increasing referrals for criminal charges for fraud, and increasing worksite enforcement through the Wage and Hour Division (“WHD”) for wage violations. In connection with this effort to uncover suspected visa fraud, the DOL appears to be focusing on IT staffing firms. On August 3, 2017, the DOL proposed new changes to the labor condition application that is used for H-1B visa applications. These proposed changes would require employers to disclose whether they will be placing their H-1B workers at third-party client sites and to identify those clients. Comments on these proposals are due by October 2, 2017.

    In addition to the policy changes above, there is also ongoing litigation involving the “Travel Ban” on nationals from seven Muslim majority countries, which has reached the U.S. Supreme Court. A final decision is expected in October of this year. While the U.S. Supreme Court allowed parts of the partial injunction on the Travel Ban to continue, it also issued additional conditions, including that the Travel Ban could be implemented against those nationals who did not have a “bona fide relationship” with a person or U.S. Business prior to June 26, 2017, when the decision was issued.

    The effects of the above policy changes are already taking place, with a reduction in H-1B petitions this year and a reported 40% of U.S. colleges indicating a decrease in international student enrollment, particularly for students from the Middle East.

    On the other hand, on July 17, 2017, USCIS indicated that it would increase the number of H-2B visas to better meet U.S. business demands for temporary nonagricultural workers. To qualify for the visa, businesses need to indicate that they would suffer “irreparable harm” if they cannot employ the proposed H-2B visa holders.

    Immigration and employment laws are complex and constantly changing. Leech Tishman’s Immigration and Employment Practice Groups have extensive experience counseling employers on I-9 requirements, U.S. DOL wage and hour audits, and applying for employment visas.

    Sharon Barney is Counsel at Leech Tishman in the Immigration and Family Law Practice Groups. She is based in the firm’s State College office and can be reached at 814.954.5904 or [email protected] Please feel free to contact Sharon with any questions regarding the recent immigration policy changes.

    Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.