United States: New Executive Order Directs Federal Agencies to Consider Layoff Activity and Labor Market Data in H-1B Adjudications

The Executive Order directs the Departments of State, Labor, and Homeland Security to consider whether a sponsoring employer “directly or indirectly” laid off employees within the previous year or plans future layoffs that “negatively affect the employment of similarly situated” U.S. workers when adjudicating an H-1B labor condition application (LCA), petition, visa application, or application for admission to the United States. The agencies are also ordered to consider data related to U.S. economic conditions in the adjudication of H-1B-related applications.

It is not yet clear how the immigration agencies will implement these provisions. Existing law obligates high-volume H-1B employers (known as “H-1B dependent”) as well as those deemed to have willfully violated H-1B program rules to attest that they have not laid off a U.S. worker and replaced them with an H-1B worker in an essentially equivalent job within 90 days before and after the filing of an H-1B petition or the placement of an H-1B worker with a secondary employer; these requirements do not apply beyond this narrow class of H-1B employers under current law. It is also not yet known how the agencies will consider economic data in the adjudication of H-1B filings, though this could result in higher scrutiny of offered wages, job duties, and job requirements, particularly in light of U.S. Citizenship and Immigration Services’ recent expansion of job requirement disclosures on the H-1B petition.

Though implementing details are not yet known with specificity, the Order is likely to result in increased investigative and enforcement activity. It instructs the Department of Labor (DOL) to review already-submitted LCAs for compliance with H-1B program rules, which could result in initiation of investigations pursuant to DOL’s Project Firewall. Project Firewall, unveiled last year, announced DOL’s intention to apply longstanding but previously unused rules that permit the agency to initiate investigations when it obtains credible information about possible violations even if no outside complaint has been made.

Fragomen will closely monitor the implementation of the new order and will provide updates as new information becomes available.