Department of Labor targets companies and their skilled foreign-born employees

Stuart Anderson Executive Director, National Foundation for American Policy
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Every four years, government agencies fearing a change in administration propose last-minute regulations that seek to expand their power and lock in questionable policies. The Department of Labor wins this year’s award for the most brazen last-minute regulatory move for a proposal to require employers to reveal to competitors and the public sensitive commercial information, as well as personal data on the skilled foreign nationals they hire on H-1B temporary visas.

On July 7, 2012, the Department of Labor proposed adding 50 new information fields to the labor condition application (LCA), a form required as part of the H-1B process to petition for skilled foreign nationals. The implications of the proposal are serious. As a new National Foundation for American Policy report by R. Blake Chisam, an attorney with the Fragomen law firm, point outs, “Since an H-1B visa is often the only practical way to hire a skilled foreign national long-term in America, DOL’s proposal will make it harder to attract and retain highly skilled and educated foreign-born scientists, engineers and professionals.”

Many organizations are publicly opposing the proposal. “The proposed changes go far beyond simply revising the scope of information collected and instead represent an inappropriate attempt by DOL to create new substantive rules and to amend existing regulations regarding an employer’s (LCA) obligations,” explains the American Immigration Lawyers Association (AILA). “Unfortunately, these extra-regulatory burdens may well be enough to force a small business to forego expanding or seeking a business opportunity that would necessitate the hiring of an H-1B worker.”

The consequences could be even more serious for foreign nationals, since DOL proposes making available to the public the name, birth date, address and other information on such individuals. Identity theft is the most obvious concern. As AILA explains, “Requiring the disclosure of the beneficiary’s biographical data is completely at odds with the underlying purpose of the LCA statute and regulations. … Rather than protecting H-1B workers, the proposed LCA changes expose such workers to potential mistreatment and retribution by malicious co-workers and anti-immigrant members of the public.”

In its comments to the agency, the Information Technology Industry Council pointed out the ludicrous nature of parts of the Department of Labor’s proposal: “ITI believes that the proposed changes would be onerous and costly on employers. Towards the end of the Federal Register entry, DOL states the ‘Total Annual Burden Cost for Respondents: $0.’ This is not a credible assessment of the estimated cost of proposes LCA changes.”

Under the proposal, the Department of Labor would, in effect, punish a privately held company that seeks to hire even one foreign national by requiring the business owner to disclose closely held information on the firm’s annual revenues, salary structure and business activities. Elsewhere on the new form, companies would be required to divulge to their competitors and others the names and locations of customers if a foreign national might perform any work there. It also proposes that employers know potentially years ahead of time all locations where an H-1B employee will work.

As the U.S. Chamber of Commerce, American Council on International Personnel and others have pointed out, the Department of Labor has the ability to find out the information it is seeking on this new form during the course of a legitimate investigation or through consultations with U.S. Citizenship and Immigration Services (USCIS), which keeps its information private. “The Department of Labor should have evaluated other ways to obtain the data without requiring companies to disclose confidential business and personal information. U.S. employers will be in a legal bind and many will be discouraged from hiring high-skilled foreign workers,” said Lynden Melmed, former USCIS chief counsel and now a partner at BAL Corporate Immigration law firm.

Between one-half and two-thirds of graduate students in key technology fields at U.S. universities are international students. It makes no sense to close the door on such individuals, many of whom will someday start new businesses and make innovations that will aid our economy. Those in Washington who follow such things know the Department of Labor is seeking, before a change in administration, a vast increase in power that would dissuade employers from hiring foreign nationals. In doing so, the Department of Labor is following a misguided, protectionist philosophy.

Stuart Anderson served as executive associate commissioner for policy and counselor to the Commissioner of the Immigration and Naturalization Service from August 2001 to January 2003 and is executive director of the National Foundation for American Policy, a nonpartisan research group based in Arlington, Va.