Update on USCIS Efforts to comply with “Buy American and Hire American”

On April 4, 2018, the Director of USCIS, Lee Francis Cissna, penned a letter to Chairman Grassley to update him on USCIS’ efforts to comply with the April 2017 Executive Order, “Buy American, Hire American.”  The contents of the letter are broken into three parts:  1) Current action items for USCIS; 2) Past items; and 3) Proposed future items to address. Below are the pending changes, proposed changes, and made changes that have occurred since the Executive Order:

Current Projects

  1. Integrity of the H-1B Program- Third-Party Placements.  USCIS recently published a policy memorandum that clarified the existing regulatory requirements for H-1B petitions filed for H-1B workers who will be at a third-party worksite.  This includes making clear that employers need to provide an itinerary; USCIS may request detailed documentation, including contracts, and proof that there is a legitimate employer-employee relationship for the specialty occupation, that the work is a specialty occupation, and that the H-1B worker will be paid the wage for the time period requested.
  2. Dedicated hotline:  USCIS has established a dedicated email address for the public to report fraud and abuse in the H-1B and H-2B programs.
  3. Site Visits:  USCIS is conducting more site visits to focus on H-1B dependent employers, in determining whether the H-1B employers are paying at least the minimum wage level to exempt them from recruitment efforts.  These site visits include L-1B workers who are at a third-party site.

Completed Projects

  1. Adjudication for extensions: USCIS released a policy memorandum that instructed officers to adjudicate extension requests with the same standard as initial requests.
  2. TN Nonimmigrant:  USCIS published policy guidance clarifying TN nonimmigrant economists be defined by qualifying business activity.

Anticipated Projects

  1. H-4 EAD:  USCIS will be working to propose regulatory changes to remove H-4 dependent spouses from the class of foreign nationals who are eligible for work authorization. This will be published for notice and comment.
  2. Electronic Registration for H-1B lottery:  USCIS will establish an electronic lottery system so that USCIS can more efficiently manage the intake and lottery process.
  3. Revise the definition of Specialty Occupation:  USCIS will work on a proposed regulation to revise the definition of specialty occupation, so that the focus is on recruiting “the best and the brightest,” and also to revise the definition of employment and employer-employee relationship to protect U.S. workers and wages.  There will also be proposed requirements designed for employers to pay the appropriate wages to H-1B visa holders.
  4. Removing the Entrepreneur Rule:  USCIS is currently drafting a proposed rule to remove the International Entrepreneur Rule.
  5. H-2B program:  Nothing specific has been set, but USCIS will be ready to provide assistance on legislative proposals for the H-2B program.

Greenberg Traurig will monitor the changes as set above and post updates as they are received.  If you have any questions, please contact our team.