U.S. H-1B adjudication now involves another key variable requiring close attention——employer layoffs.
WorldWay Immigration noted that on September 18, local time, U.S. President Trump signed an executive order to further strengthen the review of the H-1B program. The new order explicitly requires the U.S. Department of State, the Department of Labor, and the Department of Homeland Security to take into account a company's layoffs over the past year as well as its future layoff plans when processing H-1B-related applications.
I. What Are the Key Review Points of the Executive Order?
According to the executive order, when processing H-1B-related Labor Condition Applications (LCA), H-1B petitions, visas, and related entry matters, the U.S. Department of State, the Department of Labor, and the Department of Homeland Security must consider:
Whether the sponsoring employer has directly or indirectly conducted layoffs over the past year, or plans to conduct layoffs in the future, and whether these layoffs will adversely impact the employment of U.S. workers in similar positions.
At the same time, the new order mandates enhanced interagency information sharing. Agencies such as the Department of Commerce, the Department of Education, and the U.S. Small Business Administration can provide wage, employment, educational, industry, and other economic information to relevant departments to assist in H-1B reviews.
In other words, evaluating an H-1B application in the future may no longer focus solely on the individual materials submitted by the enterprise; the company's overall hiring, layoffs, and employment conditions in the relevant industry may also come under scrutiny.
II. Looking Beyond New Applications: Historical LCAs Also Enter Review
This executive order affects not only future new applications, but also incorporates historical Labor Condition Application (LCA) data into the review scope.
The executive order requires the U.S. Department of Labor to initiate a review of existing LCA data within 30 days and determine whether further action needs to be taken against relevant sponsoring employers based on the review results.
The LCA itself is a critical step in the H-1B application, involving employer-declared wages, work locations, working conditions, and associated responsibilities.
In fact, current U.S. regulations already impose stricter restrictions on certain H-1B-dependent employers and willful violators. For instance, subject to specific conditions, employers are prohibited from replacing U.S. workers in similar positions with H-1B employees during the period starting 90 days before and ending 90 days after submitting an H-1B petition.
The new order further requires that, during reviews of H-1B-related LCAs, petitions, visas, and entries, consideration must be given to whether the employer directly or indirectly conducted layoffs in the past year, or plans to lay off workers in the future, and whether these layoffs adversely affect similarly situated U.S. workers.
Therefore, this is not simply changing the original "90 days" to