New Pilot: “Known Employer”

The Department of Homeland Security is trialing a “Known Employer” program to try to find a way to streamline the immigration process for employers who wish to hire foreign-national workers through employment-based visa categories.

Currently, employment-based petitions and applications are assessed on a case-by-case basis taking into account factors such as the nature of the job offer, proposed job requirements, the worker’s qualifications, and the bona fides of the employer’s business. With respect to the latter factor, employers often include the same information for each submission. In some cases, USCIS will issue a Request for Evidence to further assess the employer’s business, but not in other cases.

Under the “Known Employer” pilot, employers will file an application to request that USCIS pre-determine certain employer-specific requirements, such as corporate structure, operations, and financial health. If USCIS approves the pre-determination request, and there have been no changes to the employer’s circumstances since that pre-approval, the employer can submit petitions and applications for employees without providing their employer-specific information.

The select immigrant and non-immigrant visa classifications that can take advantage of the employer pre-approval include outstanding professors/researchers,  multinational executives/managers, H-1B specialty workers, L-1 intracompany transferees, and TN professionals.

Launched on March 3, 2016, the pilot is using a select group of employers of different sizes and from varied industries and locations.

If its pilot is successful, Homeland Security will seek to institute a permanent program that will be open to all eligible employers.  There are potential advantages in speeding up adjudication and improving consistency of adjudication.  However, we will also be watching closely whether the government will use this program to increase data mining or to compare an employer’s various applications more closely to raise questions about seeming inconsistencies for a game of “gotcha.”