Many readers already know from the comments that Senator Grassley has
removed his hold on HR 3012, the bill that would remove per country quotas in family and employment-based green card cases. I’ve stated my support for this bill simply because I don’t think it is good policy to disciminate against qualified applicants based on their nationality.
I’ve also noted that I think the deal struck to get Grassley’s support is deeply problematic. In short, the Grassley amendment to 3012 allows the Labor Department to change the way it investigates and audits H-1B employers.
Under current law, the Labor Department approves Labor Condition Applications that are correct on their face rather than first investigating the underlying facts.
That does not stop the Labor Department from investigating afterwards, though it is a complaint driven process so it will normally not investigate unless someone tells the agency that misprepresentations and violations are happening.
The Grassley language would allow the Labor Department to hold up the approval of an LCA while it audits/investigates in cases where the employer has more than 100 employees with more than 15% working on an H-1B (typically, staffing companies, but sometimes other types of employers). And it could do the same if the DOL determines that there are “clear indicators of fraud or misrepresentation of material fact, or is obviously inaccurate.”
If the DOL chooses to audit, an employer has no recourse to go to a judge to review the DOL decision to audit (such as if the employer does not meet the size/H-1B dependency threshhold).
The objections of many to the new DOL authority are not about whether the DOL should be able to investigate fraud. I don’t think any reasonable people would say that oversight is bad.
But there are problems that I can envision happening. First, if the DOL is just plain wrong and the company is completely innocent, they are effectively still going to be punished. You need an approved LCA in order to file the H-1B petition and claim a number under the H-1B cap. If the LCA is held up due to an audit or investigation and the employer is cleared of any wrongdoing, the H-1B cap is still likely to get hit and the worker won’t be able to join the company.
Another problem is how you define “fraud”. Now there’s how you and I think about fraud and what it means. And then the government’s view. You and I think fraud means the employer is knowingly trying to mislead the government to procure a benefit. But then there is what we’ve seen in practice – a presumption that small employers are likely fraudsters.
Don’t believe me. Here’s
the link to the document USCIS tried to keep secret that was leaked and says exactly that.
And the one way to prevent DOL from abusing this new authority to effectively shut an employer out of using the H-1B process even without proving anything – access to the courts – is removed.
I’ve drawn the fire of many because I have stated that I can’t support HR 3012 with the Grassley language. But I also think the Grassley language can be tweaked to accomplish the goal of making it easier for the Labor Department to go after fraud without punishing innocent employers.
First, you can keep the current process of approving facially correct LCAs but have the Labor Department investigate AFTER the LCA is approved. That way, employers could still proceed with their H-1B filings and if the DOL finds fraud, it can still revoke the H-1Bs, impose fines, debar the employer, etc. And you don’t need to make the process complaint-driven, thus allowing the DOL to investigate based on the same factors as in the Grassley language.
Second, we should add language to the Immigration and Nationality Act prohibiting federal agencies from considering being a small business a fraud indicator. Employers would still need to demonstrate that they can meet the H-1B requirements, but merely being small won’t be enough to trigger a fraud investigation.
I wouldn’t mind leaving the judicial review language in place if the audit process happens post-LCA approval instead of pre-LCA approval. That’s because innocent employers would not suffer the same significant level of harm merely because they’re selected for investigration.
And if we’re making changes to the bill, I’d also suggest offering something to the many people who are worried that the bill will severely affect them if there’s a substantial roll back in worldwide priority dates when the bill takes effect. There is a relatively fast phase in period for the bill that can be slowed down so that those currently in line are not hurt as much.
I think such a change would smooth over a lot of the ruffled feathers that are evident just from looking at the discussions in the comments section of this blog.
My bet is that Senator Grassley would not see these changes as a major concession since it still gives the Labor Department significant new authority to investigate fraud. Unless, of course, his real goal is to just make the H-1B program a lot harder to use regardless of whether the employer is following the rules.
