Introduction: Memorandum of Understanding Between DOJ and USCIS on Collaboration to Detect and Eliminate Fraud, Abuse, and Discrimination in Visa Programs

On May 11, 2018, the United States Citizenship and Immigration Services (USCIS) and the Department of Justice (DOJ) entered into a Memorandum of Understanding (MOU) that creates a framework expanding collaboration to detect and eliminate fraud, abuse, and discrimination by employers in bringing foreign nationals to work in the United States. The MOU was prompted in part by President Donald Trump’s “Buy American and Hire American” Executive Order, which we discussed in pertinent part on site [see article].

In this article, we will examine the contents of the MOU and discuss what it may mean going forward. You may read the MOU here: [PDF version]. You may also consult the USCIS’s news release on the MOU, which summarizes its content from the USCIS’s perspective [PDF version].

Purpose of the MOU

The MOU is between the DOJ and the Department of Homeland Security (DHS). The DOJ is represented by its Immigrant and Employee Rights Section (IER). The DHS is represented by its USCIS, and specifically its Fraud Detection and National Security Directorate (FDNS).

The stated purpose of the MOU is to “establish a framework for FDNS and IER to efficiently manage and maintain information sharing and interagency case referrals” regarding the following two matters:

A. An employer’s potential misuse of the employment-based immigrant and/or [nonimmigrant] visa programs to discriminate against available and qualified U.S. workers in violation of applicable laws and regulations; and
B. An employer’s potential violation of the statutes and regulations governing the processes for seeking employment-based immigrant and/or [nonimmigrant] visas.

In short, the MOU exists to facilitate collaboration between IER and FDNS when dealing with cases where employers misuse visa programs to discriminate against U.S. workers in violation of the law and with cases where employers violate statutes and regulations regarding the process for seeking employment-based visas. The MOU extends to cases involving both employment-based immigrant and nonimmigrant visas.

The DOJ’s IER is responsible for enforcing the INA’s anti-discrimination provision found in 8 U.S.C. 1324b. This statute prohibits covered persons or entities from discriminating on the basis of citizenship or national origin in the following situations:

1. [I]n hiring, firing, or recruitment/referral for a fee; and
2. [I]n connection with their documentary practices in the employment eligibility verification process.

The MOU adds that 8 U.S.C. 1324(b) also prohibits covered persons and entities from engaging in retaliation and/or discrimination against any person for engaging in any activity protected under 8 U.S.C. 1324b.

The FDNS has the authority to conduct investigations of potential civil and criminal violations of the immigration laws. It also fingerprints and registers aliens, maintains files and record systems, and takes and consolidates evidence.

Information Sharing

The MOU sets forth the types of information that will be shared between the FDNS and the IER in furtherance of the objectives of the MOU.

FDNS will share information with the IER that would allow the IER to better “identify potential misuse of the employment-based immigrant and [nonimmigrant] visa programs to discriminate against available and qualified U.S. workers in favor of employment-based visa workers in violation of 8 U.S.C. 1324b.” With 45 days of the issuance of the MOU, the IER and FDNS will work to identify information collected by FDNS that “may be useful to IER in furtherance of its statutory functions and that may be lawfully disclosed to IER…” Additionally, IER will provide FDNS with a list of individuals who are permitted to make specific requests for law enforcement assistance in 8 U.S.C. 1324b cases, consistent with 5 U.S.C. 552a(b)(3) and 552a(b)(7) of the privacy and with the MOU.

The MOU contains parallel provisions for the IER sharing information with the FDNS. The IER and FDNS “will collaborate to identify the types of information that IER has that may be relevant to FDNS’s employer-related investigations and to establish a protocol for sharing each type of information consistent with their respective missions, needs, and resources.” This will include information that is agreed upon by the parties within 45 days of the issuance of the MOU and will entail the creation of procedures for the FDNS to make case-specific information requests from the IER, consistent with the pertinent Privacy Act provisions and the MOU.

Case Referrals

The MOU sets forth new agreements on case referrals by FDNS to IER and by IER to FDNS.

First, the FDNS will refer cases to IER where it “becomes aware of information relating to suspected employer violations of the statutes and regulations that IER enforces governing the potential misuse of employment-based immigrant and [nonimmigrant] visa programs to discriminate against available and qualified U.S. workers in favor of employment-based workers…” Such referrals will be made promptly, provided that “FDNS’s policies and procedures do not require otherwise.” Notably, when the FDNS encounters any potential victim of 8 U.S.C. 1324b it will provide such victim with information about the IER’s hotline and a copy of the IER’s charge form and/or information on how to access the IER’s charge form online.

Second, the IER will share information with FDNS when it “becomes aware of information relating to suspected employer violations of statutes and regulations governing employment-based immigrant and [nonimmigrant] visa programs that USCIS enforces…” IER may also encourage individual(s) with information about such violations to promptly report the information to FDNS via email.

Additional Notes from the MOU

The MOU contains extensive information about the statutes that it addresses,detailed information about how information will be shared and points of contact, safeguarding information in accordance with applicable laws, reporting data breaches, and training. Those who are interested in reading about these points in more detail should consult the text of the MOU, to which we provided a link in the introduction.

Conclusion

The MOU highlights the emphasis of the Trump Administration on combating fraud, abuse, and discrimination by employers in the nonimmigrant and immigrant visa programs. The MOU does not create any new rules or laws, but rather lays the groundwork for increased cooperation between DOJ and DHS on enforcing existing rules and laws. Regardless of enforcement efforts, it is imperative that employers seeking to employ foreign workers in the United States are fully aware of the applicable statutes, regulations, and guidance regarding the immigrant or nonimmigrant visa category in question. An employer is always well-advised to consult with an experienced immigration attorney regarding any aspect of the process, and especially in cases of any doubt about applicable requirements.

To learn more, please see our website’s sections on immigrant [see category] and nonimmigrant [see category] employment visa categories.