Immigration

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On September 19, the U.S. Department of Justice (DOJ) announced a False Claims Act (FCA) settlement with a New Jersey shipyard that allegedly hired subcontractors employing undocumented workers. The recent settlement highlights an ongoing shift in the federal government’s strategy to enforce immigration laws aimed at businesses with federal contracts. It also underscores the Trump administration’s stated focus on enforcing immigration laws through various legal avenues, including criminal, civil, and administrative investigations and enforcement actions against employers.

Labor + Employment Workforce Watch is a guide to the employment law developments most likely to impact your business. The Troutman Pepper Locke Labor + Employment Team represents employers in the most sensitive workplace matters, enabling our clients to concentrate on their core business operations. Our team is adept at handling and managing labor and employment issues on national, international, and local levels. Recognized as a leading law firm by Chambers USA, our attorneys provide comprehensive advice on every type of employment issue a company may encounter, at every stage of the employment life cycle.

Labor + Employment Workforce Watch is a guide to the employment law developments most likely to impact your business. The Troutman Pepper Locke Labor + Employment Team represents employers in the most sensitive workplace matters, enabling our clients to concentrate on their core business operations. Our team is adept at handling and managing labor and employment issues on national, international, and local levels. Recognized as a leading law firm by Chambers USA, our attorneys provide comprehensive advice on every type of employment issue a company may encounter, at every stage of the employment life cycle.

In the ever-evolving landscape of employment verification, the use of Form I-9 software programs is increasingly prevalent. These programs, often part of an HRIS (Human Resource Information System), streamline the process of verifying an employee’s eligibility to work in the U.S., making the onboarding process more efficient for employers. However, their use also comes with a set of obligations.

Q. How does the H-1B cap lottery work?

A. Once again, the H-1B cap filing season is here. The H-1B is a popular U.S. work visa available to highly skilled foreign nationals who are offered an H-1B-qualifying position by an employer. This visa is also known as a “specialty occupation” visa because in order to be eligible for this visa category, the position being offered to a foreign national must require a minimum of a bachelor’s degree in a specific field, and the foreign national must meet that requirement. Typical candidates for the H-1B petition include students and recent graduates currently working under a work permit card (OPT or STEM OPT). In some cases, employees in TN status might benefit from switching over to H-1B.

Q: It is no secret that Trump and Biden have starkly different views on immigration laws and policies. Now that President Biden is in charge, how have things changed? What impact has there been on employers and their employees in the U.S. under employer-sponsored visas?

A: There are several key changes for employers to note:

Revocation of Trump’s “Buy American Hire American” (BAHA) Executive Order

Since former President Trump signed the BAHA executive order on April 18, 2017, it became the backbone of many of the immigration-related policies passed during his time in the Oval Office, including: (1) rescission of U.S. Citizenship & Immigration Services (USCIS)’s deference policy that made it less burdensome to obtain approvals on extension filings that were previously reviewed and approved; (2) issuance of an H-1B Third-Party Worksite Memorandum, which heightened the scrutiny on IT consultants and other similar consulting professionals who had to be stationed at the customer’s worksite; and (3) increased enforcement efforts related to H-1B and L-1 employer site visits. This also led to an increase in the number of “requests for evidence” issued by USCIS, which, in turn, led to an increase in denials overall.

Following President Trump’s Presidential Proclamation on April 22, 2020 to temporarily suspend immigrant visa processing and entry of certain immigrants into the United States, the White House has issued a new Executive Order entitled “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak”. This new order is directed at foreign nationals and their dependents who seek to obtain visas in the following classifications: H-1B and H-2B, L-1, and J-1 for participation in intern, trainee, teacher, camp counselor, au pair, or summer work travel programs. Other visa classifications, such as B-1, F-1, O-1, and TN, are not addressed by this proclamation.