Extreme Vetting for Visa Applicants Abroad and Increased H-1B Enforcement at Home

Jun 15, 2017

The U.S. State Department recently issued guidance to its diplomatic and consular posts abroad relating to implementation of Executive Order 13780, “Protecting the Nation from Foreign Terrorist Entry into the United States.” This guidance directs U.S. embassies and consulates to begin implementing heightened screening for certain visa applicants. Each post is directed to develop a list of criteria to identify sets of applicant populations that warrant increased scrutiny. Because the Department’s directives call for individualized review by each post, it is unclear at this time who exactly will be affected by the heightened screening process. Furthermore, because each post must develop its own criteria, the individuals potentially subjected to the additional screening may differ location-by-location. For those who are subjected to additional screening, they may be asked to provide 15 years of work and travel history, all addresses for the last 15 years, prior passport numbers, all phone numbers used for the last 5 years, and all email addresses and social media handles used for the last 5 years. While the scope of this extreme vetting is unknown at this time, it will likely result in considerable delays for those who are covered. Individuals traveling abroad to obtain new visas should be aware of the potential for delay.

In addition to heightened vetting as part of the visa application process, the Trump Administration has also detailed a plan for increased compliance and enforcement efforts in the United States for H-1B employers. U.S. Citizenship and Immigration Services (“USCIS”), the U.S. Department of Justice (“DOJ”), and the U.S. Department of Labor (“DOL”) has announced plans to further deter and detect H-1B fraud and abuse. In particular, USCIS indicated that it will focus its compliance and enforcement efforts on cases where USCIS cannot validate the employer’s basic business information through commercially available data; where the employer has a high ratio of H-1B workers as compared to U.S. workers; and where the employer petitions for H-1B workers who work off-site at another company or organization’s location. DOJ and DOL cautioned H-1B employers not to discriminate against U.S. workers by favoring H-1B visa holders in the hiring process. Accordingly, employers filing H-1B petitions on behalf of any foreign workers should be cognizant of the increased possibility of on-site audits and other compliance and enforcement related efforts, particularly if any of the factors listed above exist.