We recently fielded a call from a client’s in-house employment counsel, who noted that the U.S. Department of Labor (DOL) seems to be rolling back employee protections, making her job a little easier. But then she observed that isn’t the case with immigration. The DOL is scaling back protections, except with regard to protecting American workers from the unnecessary influx of foreign workers. 
Immigration attorneys who don’t also practice employment law would be surprised to hear that the DOL is scaling back any protections because that’s the opposite of what we are seeing in the foreign labor arena. In June, DOL Secretary Alexander Acosta announced that the agency would “aggressively” confront entities that are committing visa program fraud and abuse. And we are certainly seeing that in our practice. What kind of fraud and abuse is the DOL confronting? Another anecdote may be a helpful illustration.
CBP’s probing questions are indicative of government’s skepticism
In late June, another client called to say that its H-1B employee who had traveled to India for a family wedding and was returning to the United States to resume work had been turned away at the airport by U.S. Customs and Border Protection (CBP). The employer has sponsored H-1B workers for years and had never experienced this scenario. We’ve certainly seen an increase in people being turned away by CBP, but they are usually young, single, unemployed tourists or students, not returning H-1B workers.
In an effort to figure out why CBP would deny entry to a returning worker, we asked for the transcript of its interview with the employee. The first thing we noticed was that CBP asked for the employee’s cell phone, and he gave agents permission to access it. (This request is very common now, and employees who travel with phones that contain sensitive client data should be made aware of it.) It appears that after reviewing the contents of his phone, CBP was convinced that the employee didn’t really have a job in the United States, and he therefore shouldn’t be admitted to the country on a work visa. That issue is at the heart of much of the DOL’s concern about the H-1B program.
The officer asked the employee why he was sending texts to friends asking about job opportunities and why he discussed salaries and specific technologies he was working with. CBP noted that the employee followed up on a résumé he had submitted while he was in the United States, and the officer asked him, “Why are you shopping around your résumé if you had a job?”
Now, many of us have shopped around our résumés even when we have jobs. CPB went further with this traveler, though. It reviewed his résumé and asked probing questions to reconcile facts. For example, one red flag was that CBP could tell from its electronic record that even though the employee obtained his H-1B visa in May 2016, he was present in the United States for only about one month around March 2017.
The agency also questioned why the employees résumés said he had worked in the United States since November 2016, which would have been the first month he was eligible for U.S. work, and he replied that he was working remotely from India for the U.S. employer. (What he didn’t mention was that his wife had just passed away, leaving him to care for a newborn daughter, and that he had asked to work remotely for a while so he could sort out his personal affairs before moving to the United States a few months later.)
Takeaway
The takeaway from our client’s experience is that the government is serious about combating fraud in the H-1B program and is focused in particular on companies that obtain H-1B visas and then don’t use them. Other companies who have real ongoing work in the United States for which they need professional workers suffer because H-1B visas are subject to an annual quota. The DOL is convinced that many H-1B sponsors are really “job shops” applying for visas they may never need, just to keep open the option of using qualified foreign professionals if specific work becomes available.
Secretary Acosta has asked the DOL’s Employment and Training Administration to develop proposed changes to the labor condition application (LCA) process and to review its investigatory forms to better identify systematic violations and potential fraud. We envision changes to the LCA that could, for example, identify the clients or end users where H-1B employers send their workers or a system that 
requires employers to verify periodically that their employees are working where they say they are.
We hope employers that don’t outsource H-1B workers will not be too affected by such changes, but any employer sponsoring H-1B visas should stay tuned.
Elaine Young is an attorney with Kirton McConkie in Salt Lake City, Utah. You may contact her at eyoung@kmclaw.com.
Need to learn more? Join us November 16-17 at the 2017 Advanced Employment Issues Symposium, where Elaine Young and her Kirton McConkie colleague Jacob Muklewicz will present H1-Bs: Business Growth Strategies for Hiring and Developing Global Talent. This session will cover the affect the U.S.-based immigration system may have on hiring and retention strategies of the future, how recent legislation could have on business growth strategies for U.S.-based employers, the potential costs and benefits of hiring global talent vs. American workers (and vice versa), how to evaluate whether hiring foreign nationals will be important to your company’s talent acquisition strategy for the short-term and the long haul, and why moving some business operations to Canada may make sense, given Prime Minister Justin Trudeau’s commitment to “open” borders. For more information, click here.