Trump To Order Investigation of Visa Programs "that undercut the American worker"

President-Elect Trump announced in a November 21 video (at 1:58) his intent to issue an Executive Order directing the Secretary of Labor to "investigate all abuses of visa programs that undercut the American worker." Trump offered no elaboration on which visa programs he sought to investigate, but the list no doubt includes, among others, skilled temporary worker programs requiring Labor Department wage certification (H-1b, Chile and Singapore H-1b1, and Australia E-3 programs) and employment based immigration programs in the Advanced Degree, Exceptional Ability, Professional, Skilled worker and unskilled worker categories requiring a DOL determination as to unavailability of U.S. workers.

Because the Secretary of Labor's investigative authority is established - and limited by - federal statute, an Executive Order would amount to expression of general intent rather than creation of some new authority. With regard to the H-1b program, for example, the Secretary of Labor may investigate any employer where there is "reasonable cause to believe that the employer is not in compliance" with the required wage or other requirements associated with the Labor Condition Application.

H-1b-related investigations are largely been driven by complaints filed by aggrieved parties on a case by case basis. An Executive Order would presumably order the Labor Secretary to step up department initiated "reasonable cause" determinations and to take an expansive view of what “reasonable” means. As long as the Secretary personally approves each such investigation, DOL could commence a very broad investigation of an employer’s participation in the H-1b program.

Since the majority of H-1b visa petitions is held by a handful of large outsourcing companies, the Labor Secretary has the ability to commence broad investigations relating to many thousands of H-1b employees with risking writer’s cramp. What constitutes “reasonable cause” to do so will no doubt become a highly litigated point of law.

The nature and scope of these investigations, and what companies will be targeted, bears watchful waiting.