Governing by executive action is not always an effective means to achieve a desired policy outcome and many times it produces merely symbolic victories. In the case of President Trump’s Buy American and Hire American Executive Order, there is growing evidence that the effort to protect the economic interests of U.S. workers by more rigorously enforcing the nation’s immigration laws has real teeth.
The latest action that is drawing blood from the outsourcing firms, staffing agencies, and big tech firms that have abused H-1B visas (and American workers) is a critical decision by the Labor Department (DOL) to begin publishing the companies at which H-1B holders are employed.
While many companies have been able to shield themselves from scrutiny or backlash for employing foreign workers at lower wages, the end to that shell game is coming. As noted by Bloomberg Law, which broke the story, the move is both a means of public shaming and “may open up the client companies to more lawsuits—by both the government and American job applicants—claiming race or national-origin discrimination,” since most H-1B employees are Indian or Chinese.
In November 2018, DOL instituted changes to the H-1B certification application, which expectedly drew complaints that the updated forms were invasive and complicated the process.
In response to public comments to the rule change, the department asserted it “needs to know where H-1B workers are placed, and with whom, for the protection of both those workers and similarly employed U.S. workers. This program does not guarantee anonymity to employers or entities at which or with which applicants place foreign workers.”
The stricter scrutiny being applied at Labor is apparent at U.S. Citizenship and Immigration Services (USCIS) as well.
Once was viewed as a rubber-stamp process, applying for H-1B visas is getting harder as USCIS now requires companies show evidence that an actual job exists. In addition, USCIS officers now apply the same level of scrutiny to both initial petitions and extension requests” for H-1B visas.
The result is that denials of the sought-after visas have increased under the Trump Administration with the higher review standards. According to a National Foundation for American Policy (NFAP) analysis, denial rates for H-1B petitions have risen from 6 percent in FY 2015 to 32 percent in the first quarter of FY 2019.
The actual enforcement of immigration laws in the workforce is not sitting well with the staffing firms and tech giants that have grown accustomed to the pipeline of low-cost labor as the 40-plus lawsuits filed in federal court indicate.
While the administration is bringing some order to the H-1B visa program, it also is bringing the law. Just last month, the U.S. Attorney’s Office in New Jersey announced the arrest of four executives of two IT staffing companies on charges they fraudulently sponsored foreign workers for H-1B visas for jobs that did not exist. A few weeks later, a grand jury in Illinois indicted a Chinese businesswoman on charges of providing fraudulent employment verifications for H-1B visas.
It remains unclear what the future of the H-1B visa program holds, but the last two years’ reform efforts certainly indicate a bright future for the American worker.