News & Insights

New Agreement Between Federal Departments For H-1B Enforcement

The U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) will be joining forces to investigate suspected cases of fraud of the H-1B specialty occupation visa program (H-1B program).

The two federal departments have entered into an agreement under which DHS will share data and records on H-1B petitions in the United States with DOL.

With this agreement, for the first time, the DOL will have greater involvement in investigating potential violations of the Immigration and Nationality Act’s temporary visa program for high-skilled workers.  USCIS will refer suspected employer violations within the H-1B program to the DOL’s Office or Foreign Labor Certification for administrative and targeted visits.

Any employer that has H-1B specialty occupation workers is now on notice that the departments will be increasing their enforcement efforts. Such employers should exercise special care with regards to their H-1B employees. Investigations can potentially lead to penalties, such as fining companies for willful violations and awarding back pay to workers if DOL finds that an H-1B employer did not pay the correct wage, sometimes going back over significant periods of time or disqualification from participation in the H-1B program altogether.

DOL maintains a list of individuals or corporations who, because of an H-1B investigation/final agency action, have been disqualified from the approval of petitions to participate in the nonimmigrant program.  In addition, willful violator employers are subject to random investigations by the Department of Labor for a period of up to five years from the date the employer is determined to be a willful violator.

As a quick reminder, DOL can find an H-1B violation when an employer fails to pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment- whichever is greater. This obligation is specified in the Labor Condition Application (LCA) the employer signed before filing an H-1B petition.

DOL can also find violations of the H-1B program when there is:

  • A substantial violation pertaining to notification, labor condition application specificity, or recruitment of US workers;
  • Misrepresentation of material fact on the labor condition application;
  • An early-termination penalty paid by the employee;
  • A Payment by the employee of the additional filing fee;
  • A Violation of the requirements of the Labor Condition Application (LCA) pertaining to wages, working conditions, strikes and lockouts, and notice or the provisions regarding public access where the violation impedes the ability of the Administrator to determine whether a violation has occurred or the ability of members of the public to have the information needed to file a complaint or information regarding alleged violations; or
  • A willful violation of the requirements of the LCA resulting in the displacement of a US worker employed by the employer in the period beginning 90 days before and ending 90 days after the filing of an H-1B petition.

As it is not yet clear how this new agreement will be implemented, it is strongly recommended that employers of H-1B workers pay specific attention to their obligations and comply with all H-1B regulations. If an employer suspects that they have failed to comply with any regulations, they can immediately contact an immigration attorney at Patel Law Group via e-mail at mmutombo@patellegal.com or cprescott@patellegal.com

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