Two weeks ago I wrote that we need to separate what we know about potential changes to the US immigration system from what we don’t know and what is speculation. Over the past week, a couple of important indicators are telling us that employers need to prepare for more enforcement and scrutiny of their employment of foreign nationals.
What We Know: In a video message, President-elect Trump said that he would “direct the DOL to investigate all abuses of visa programs that undercut the American worker.” (minute 1:57). Currently the DOL’s Office of Foreign Labor Certification has direct jurisdiction over wages and working conditions in the H-1B, H-2B, H-2A and PERM programs. DOL’s other divisions such as Wage & Hour and OSHA have authority over all workers in the United States. Further, the Department of State clarified in its Subpart A regulations that work-based exchange visitor (J visa) programs are subject to all federal and state labor laws.
In fact, DOL already has the ability to receive complaints about potential abuses of immigration rules and has debarred companies that have violated the law. What additional measures President-elect Trump has in mind are not yet clear.
In addition, President-elect Trump has nominated Senator Jeff Sessions for the position of Attorney General. In this role, he would oversee immigration-related litigation. Senator Sessions has been a staunch critic of both legal and illegal immigration for a number of years and has supported mandatory use of E-Verify.
Steps for Employers: Absent other indicators, it is fair to assume that hiring and employment practices involving foreign nationals will be scrutinized more closely in the near future. Now is a good time for employers to audit their I-9 records and LCA public access files. Remember that any member of the public can request access to LCA files and in the past we have seen reporters and disgruntled workers spend significant time going through employer files. One thing to consider is what procedures your organization has in place in the event that someone walks in and asks to see your files.