US tightens H-1B scrutiny: Employers with layoffs face closer checksThe Trump administration has ordered tighter scrutiny of H-1B visa applications where sponsoring employer companies have recently laid off, or plan to lay off, similarly situated US workers. The move could bring greater scrutiny to companies that the administration alleges have cut American jobs while continuing to hire foreign workers.

The proclamation states: “Many employers have laid off large numbers of highly skilled American workers, only to promptly hire large numbers of H-1B workers who are often lower-skilled and lower-paid. 3 million American employees from 2022 through 2026.

Employers have even forced laid off American workers to train their foreign replacements.” The White House said the H-1B programme was created to bring in specialised foreign workers to “supplement” the US economy, but alleged that it has instead been used by some employers to “undercut and displace” American workers.

The accompanying proclamation similarly says the programme has been exploited to “replace, not supplement, American workers with lower-paid labour”. “One company even warned its shareholders that restrictions on cheap H-1B labour could force the company to use ‘local’ workers, which may only be available at higher wages,” the executive order illustrates.

An employer seeking to sponsor a foreign worker under the H-1B programme must first file a Labour Condition Application (LCA) with the US Department of Labor before submitting the H-1B petition to US Citizenship and Immigration Services (USCIS). In the LCA, the employer makes legally binding attestations covering matters including the wage to be paid, occupation, work location and working conditions.

The executive order now directs the Department of Labor, within 30 days, to review data from previously filed LCAs to determine whether further action against sponsoring employers is warranted. The review could trigger investigations potentially bringing greater scrutiny to wages, job conditions and compliance with H-1B requirements.

Mitch Wexler, senior counsel at Fragomen, a global immigration law firm, said: “It is not yet clear how the immigration agencies will implement these provisions. ”“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 USCIS’ recent expansion of job requirement disclosures on the H-1B petition,” he added.