Trump H-1B Enforcement: How to Prepare

The Trump administration has prioritized immigration reform and enforcement, with the H-1B visa program expected to undergo increased scrutiny. Employers and H-1B visa holders should prepare for heightened enforcement actions from multiple federal agencies, including USCIS, DOL, CBP, and U.S. consulates abroad. Understanding what to expect and how to prepare is essential for maintaining compliance and avoiding disruptions. This guide, based on available guidance, the prior actions by the Trump administration, and insights from our years of practice, offers in-depth strategies for navigating each agency’s enforcement priorities and staying compliant in an era of increased H-1B scrutiny.

I. United States Citizenship and Immigration Services (USCIS)

Case Preparation and Documentation Standards

Increased USCIS scrutiny means that H-1B petitions will be reviewed with a critical eye for errors, inconsistencies, and omissions. Ensuring complete, precise, and accurate documentation is paramount. Also, expect USCIS to adjudicate the H-1B petitions strictly in terms of Specialty Occupation and Beneficiary qualifications issues – looking carefully at job duties, SOC Codes, wages, and degree evaluations.

Thorough Form Completion: Forms must be filled out completely, including putting “N/A” in sections that do not apply to avoid triggering Requests for Evidence (RFEs) or denials. Forms with missing information, even minor details, may lead to rejections under USCIS’s stricter standards.
Document Accuracy: Verify that all information on each form to ensure it matches details in related documents, such as LCAs, employment contracts, and project details. Even minor inconsistencies can raise red flags and invite RFEs or additional inquiries.
Comprehensive Submission: USCIS has previously been relaxed on documentation completeness, but today all pages of forms, including blank or instruction pages, should be submitted as part of the packet. This approach helps avoid issues at the initial review.
Evaluations and Expert Opinions: Consider using these with your initial filing to avoid RFEs and rejections.

Labor Condition Application (LCA) Compliance

Given USCIS’s focus on ensuring fair wages and proper job classifications for H-1B workers, special attention should be given to the Labor Condition Application process.

SOC Code Selection: The selected Standard Occupational Classification (SOC) Code must align with the job duties specified in the petition. For instance, a programmer analyst position must meet the requirements outlined in the associated SOC Code and cannot be classified under a SOC Code intended for a less specialized role. Before making a choice of the SOC Code on the LCA, compare the job duties of your position with the job duties of SOC occupation.
Determining Appropriate Wage Level: Wage level selection should be based on the complexity and responsibility of the job duties. Jobs whose entry levels require less than a bachelor’s degree may need to be placed at a higher wage level for H-1B purposes, as the wage level I in those cases may deemed to not be Specialty Occupation jobs (this often applies to IT roles, such as Computer Programmer or Software Developer.) This adjustment helps to ensure compliance, especially for roles that USCIS may otherwise consider as lacking specialized occupation requirements at entry levels. In addition, roles with complex tasks or requiring advanced degrees, and those with higher titles (such as Sr., Manager, etc.) may need to be aligned with higher wage levels to reflect these roles and responsibilities.
Job Duty Precision: USCIS is likely to increase scrutiny of whether the job duties align with the LCA’s SOC Code and the appropriate wage level, so it’s essential to draft job descriptions that accurately reflect the specific duties, complexity, and required skills for the position.

Increased Site Visits and Employment Verification

The USCIS’s Fraud Detection and National Security (FDNS) unit conducts on-site visits to verify petition details, including employment locations and job duties. These visits are likely to become more frequent, detailed and intrusive.

Prepare in Advance: Employers should establish internal processes to handle site visits. This includes designating a point of contact person and ensuring all relevant parties (e.g., HR, managers, employees) are trained on what to expect during a site visit. Email Ramchand & Raval to request our free guide on H-1B Site Visit Preparation.
Employee Training: Employees should be briefed on what to expect during an inspection, including common questions regarding job duties, employment locations, and project specifics. Employees should familiarize themselves with the petition and LCA details and be prepared to answer questions about their role accurately.
Project Verification: For consulting companies or employees placed at third-party sites, USCIS may request end-client letters, project contracts, and other documentation to confirm the worksite location, job duties, and employment terms. USCIS may also contact the end-client directly to verify information. Prior coordination with the end-client representatives and using well-drafted vendor and end-client letter can be very helpful – clients of Ramchand & Raval can use our End-Client/Vendor Letter Tool to generate Specialty Occupation verification letters that meet USCIS requirements.

Project Verification and Expert Opinions

USCIS may require additional documentation to substantiate the legitimacy of projects, to confirm that the H-1B position qualifies as a “Specialty Occupation”, and to ensure availability of the Specialty Occupation job.

End-Client Letters and Project Documents: For H-1B workers assigned to third-party worksites, end-client and vendor agreements or letters confirming the worker’s job duties, location, and project duration are essential. Ensure these letters align with the details in the H-1B petition and adhere to USCIS-required formatting. Clients of Ramchand & Raval can use our End-Client/Vendor Letter Tool to generate Specialty Occupation verification letters that meet USCIS requirements.
Expert Opinions and Evaluations: Expert opinion letters can help establish that a job meets the requirements of a Specialty Occupation and substantiate the need for the H-1B worker’s qualifications and explain how their skills align with the role. Evaluations can help establish that a particular Beneficiary has the educational qualifications or the equivalent based on work experience for a particular Specialty Occupation. USCIS has been relying on these opinions and evaluations, and the need for these will likely increase.
Detailed Project Descriptions: USCIS expects detailed descriptions of project work to demonstrate that an H-1B worker’s employment is ongoing, legitimate, and specific to their field of expertise. Descriptions should clearly outline the project’s scope, goals, and how the employee’s role is integral to project success.
Detailed Job Duties: It is important to provide USCIS with detailed job duties, as USCIS is likely to increase scrutiny as to whether a H-1B position is a Specialty Occupation job. The job duties should not only list detailed tasks and subtasks, but also list percentage of time expected to be expended on each task/subtask, list the tools and technologies that will be used in performing the work, and required education and/or experience required for the position. The lack of detailed job duties is likely to trigger an RFE from USCIS. In the case of consulting companies, is also important to ensure that the information in end-client and vendor agreements or letters is consistent with the job duties filed with the H-1B petition.

Strict Compliance with Maintaining Status and H-1B Amendments

USCIS enforcement also emphasizes compliance with maintaining H-1B status, especially when job changes occur.

Filing Amendments Promptly: Any material changes in the H-1B worker’s employment, including changes in work location, job duties, or wage levels, may require an amendment to the petition. Failing to timely file amendments may result in compliance issues and jeopardize an employee status. USCIS will likely enforce these requirements strictly.
Maintaining Consistency in Job Duties: Ensure that the H-1B employee’s actual job duties at the worksite align with those described in the H-1B petition. Misalignment between the job description and the employee’s actual duties can lead to complications during site visits or audit,and may lead to revocation of an approved H-1B petition.
Record-Keeping: Employers should maintain detailed records of the H-1B employment, including any changes in employment conditions. Having complete and updated records on hand will help in case of an audit or site visit.
F-1 Students: USCIS will likely increase scrutiny to ensure that students have complied with F-1 and OPT regulations and did not violate their status while they were students. USCIS will likely increase scrutiny of the days of unemployment on OPT, and also whether the OPT job was related to the F-1 course of study. F-1 and OPT violations can impact their H-1B change of status petitions.

II. Department of Labor (DOL)

Increased Wage and Hour Audits

The Department of Labor (DOL) is expected to increase audits for H-1B wage and hour compliance.

Ensuring Prevailing Wage Compliance: Employers must pay H-1B workers the wage level specified in the LCA. Any discrepancies between the LCA-stated wage and actual wage payments may trigger fines or other penalties.
Tracking Work Hours Accurately: DOL may verify that employees are being paid appropriately for all hours worked, including overtime where applicable. Employers should implement robust systems to accurately record the hours worked by H-1B employees.
Non-Productive Pay Compliance: In cases of non-productive periods (e.g., benching), employers must continue paying the full wage. Failing to comply with paying wages during non-productive periods may lead to penalties and back wages owed to the employee.
Unpaid time off per Beneficiary’s Request: In some cases, Beneficiaries may take time off for medical or personal reasons, these reasons would need to be documented very carefully and appropriate documentation should be retained by the employer. For example, documentation must include the reason for time off, the period of time being requested, the employee’s written request for the medical or personal leave, and the employer’s communication to the employee granting such request. It is often a good idea for employers to develop a process and templated forms for such a process, list this process in their employee handbook, and to consistently abide by the process.

Public Access File Requirements

DOL’s Public Access File (PAF) requirements remain a critical area of compliance, and noncompliance can lead to substantial penalties.

Content Accuracy: The PAF must include specific documents, such as the certified LCA, wage determination information, and evidence of LCA postings. Each document must be accurate, complete, and in compliance with DOL standards.
Retention of Updated Records: Employers should update the PAF if there are any changes to the LCA, such as a new prevailing wage determination or H-1B extension. The PAF should be maintained for the requisite period of time and readily available for review upon request.
Review and Verification: Employers should review all PAFs to ensure accuracy and completeness. Inaccuracies, outdated documents, or missing information can all result in fines or sanctions during an audit.
Conduct Internal Compliance Audits: Employers should conduct internal audits to verify compliance or identify and correct compliance issues to prepare for DOL audits.

III. Customs and Border Protection (CBP)

Increased Scrutiny and Secondary Inspections at Ports of Entry

CBP officers are anticipated to scrutinize H-1B visa holders more closely, especially those employed by consulting companies, when they enter the U.S.

Detailed Document Preparation: H-1B holders should travel with copies of essential documents, such as the I-797 approval notice, passport with valid visa, recent pay stubs, and letters from the employer or client.
Prepare to Discuss Job and Project Details: CBP officers may ask specific questions regarding the purpose of the H-1B holder’s entry, the nature of their job, information about their employer or client, and the location of their work. H-1B holders should be prepared to discuss their role, duties, and current work project in detail, and information about their employer or client.
Consulting Company Employees and Third-Party Placements: H-1B holders employed by consulting companies and assigned to client sites are likely to encounter additional scrutiny. They may be asked to provide evidence of their ongoing employment relationship with the primary employer, as well as documentation supporting their placement at a client site or client project.
Consistency of Information: Any information provided to CBP officers at the port of entry should be consistent with the information on file with USCIS and in the H-1B petition. Discrepancies can lead to further questioning, delays, or even denial of entry.
Searches by CBP: CBP has the right to search employees’ personal belongings and documents, including electronic devices such as laptops, tablets, and phones (accessing the data contained in them). Therefore, if CBP finds inconsistent information during these searches, then it can lead to the denial of entry of the Beneficiary.
Social Media: It is critical that the Beneficiary’s social media be consistent with their immigration documentation. CBP officers may access the social media of the Beneficiary to verify consistency and truthfulness. Inconsistent social media information, particularly around employment, job title and job duties, may lead to additional scrutiny or delays.

IV. U.S. Consulates Abroad

Heightened Consular Scrutiny for H-1B Visa Applicants

H-1B applicants are likely to encounter more in-depth questioning and additional documentation requirements during visa interviews, especially if employed by consulting companies. There may also be an increase in the number of Administrative Processing under Section 221(g) of the Immigration and Nationality Act issued by consulates and delays in H-1B visa processing.

Consular Interviews and Role-Specific Questions: Consular officers may ask detailed questions to confirm that the H-1B position is a Specialty Occupation requiring specific expertise. Applicants should be prepared to discuss their qualifications, the specific nature of their job, and the relevance of their skills to the position.
Comprehensive Documentation: Applicants should carry a complete set of supporting documents, including the I-797 approval, end-client letters, project descriptions, and employer contracts. Each document should provide a clear, detailed view of the applicant’s role, employment relationship, and job duties.
End-Client and Employer Letters: For consulting or third-party employment, the consulate may request end-client letters verifying the job position, project scope, and employment terms. These letters should match the information provided in the H-1B petition and should have all the critical information that the Consulates require – clients of Ramchand & Raval can use our End-Client/Vendor Letter Tool to generate Specialty Occupation verification letters that meet USCIS requirements.
Expect Potential Delays: Administrative processing is common for H-1B visa applicants, especially for those with consulting company employment. Applicants should anticipate potential delays and may want to avoid purchasing travel tickets until after the visa is issued.
Social Media: It is critical that the Beneficiary’s social media be consistent with their immigration documentation. Consulate officers may access the social media of the Beneficiary to verify consistency and truthfulness.

V. Potential Legislation Impacting H-1Bs

It is likely that the incoming Trump Administration will likely propose legislation that impacts H-1B visas, these may possibly include:

Increasing the minimum wage requirements;
Increasing the qualification requirements;
Additional scrutiny on verification of the availability of Specialty Occupation work – Ramchand & Raval client use our End-Client/Vendor Letter Tool to obtain Specialty Occupation verification letters that meet USCIS requirements;
Shorter H-1B approval times; and
Limiting the ability of employers who have had layoffs to hire H-1B workers.

Further details of any expected legislation will only become apparent once the new administration and new session of Congress begin in 2025. However, prior to the Trump Administration taking office, companies may want to consider filing H-1B renewal or amendment petitions in premium processing which may be coming due within the next six months.

VI. Potential Impact on H-4 Employment Authorization Documents (EADs)

Under a revised policy, the new Trump administration may rescind EADs for H4 spouse dependents of H-1B Beneficiaries. In anticipation of this situation, if you have essential employees on the H4 EAD, consider filing an H-1B for them in the upcoming H-1B lottery. Additionally, if any H-4 employees are eligible for EAD renewals, consider having them file the renewal application without delay.

VII. Final Recommendations

To stay compliant in this new enforcement landscape, H-1B employers and employees should prioritize proactive measures:

Provide Regular Training for HR and Employees: Educate HR personnel and H-1B employees about the importance of maintaining consistent documentation, record-keeping, and compliance with all requirements. Furthermore, consider educating employees about social media considerations and the importance of accuracy in representing their employment role online.
Conduct Internal Compliance Audits: Conduct regular internal audits of H-1B compliance procedures, public access files, and employee records to preempt potential issues.
Timely File Amendments: Always file amendments for any material changes in H-1B employment, which may include changes in job location, duties, or wages. Delays in filing amendments can lead to status violations and potential penalties.
Legal Consultation and Preparedness: Employers should consider working with an experienced immigration attorney for guidance during this changing H-1B landscape, and to develop H-1B strategies and procedures for their company. Also, consider consulting an experienced immigration attorney to ensure compliance as regulations change, and to respond to complex cases or RFEs.

VIII. Conclusion

Navigating the complexities of H-1B enforcement under increased scrutiny requires thorough preparation, proactive measures, and adherence to all compliance requirements. Employers and H-1B visa holders must prioritize meticulous documentation, maintain consistent records, and stay informed about changing policies and regulations. By conducting regular audits, seeking expert legal guidance, and preparing for agency scrutiny, you can mitigate risks and ensure smooth operations.

At Ramchand & Raval, we are committed to helping you navigate these challenges effectively. Whether it’s assistance with filing, responding to Requests for Evidence, or conducting compliance audits, our team is here to support your immigration needs. Take the first step toward safeguarding your workforce by scheduling a consultation today.

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