News & Insights

Trump’s Plan To Increase H-1B Enforcement

Department of Homeland Security (DOL) and Department of Labor (DOL) to join forces to investigate H-1B violations

On June 22 President Trump issued a proclamation suspending entry of non-immigrants into the U.S., namely those seeking to enter on an H-1B, H-2B, H-4, J or L visa.

This proclamation also required the Secretary of Labor and Secretary of Homeland Security to take appropriate action to ensure those on H-1B do not disadvantage American workers.

As a result of this DHS and DOL will now join forces to investigate possible violations of the H-1B program.  What this means is that DHS will now refer suspected violations to DOL.  Previously DOL would typically only investigate cases where a complaint was filed against an Employer, usually by an employee.

For further details of this joint effort please refer to our separate article at:

https://www.patellegal.com/new-agreement-between-federal-departments-for-h-1b-enforcement/

New Executive Order points to further H-1B enforcement

On August 3, 2020 Trump signed an Executive Order requiring the heads of government agencies to review Federal government contracts from Oct 1, 2017 to determine whether they used temporary foreign labor and whether this had a negative impact on the economy/U.S. jobs and to submit a report within 120 days.

In this executive order Trump is also requiring DHS and DOL to make sure employers (including secondary employers) have been complying with the Immigration and Nationality Act, specifically in relation to the LCA requirements.

Based on these two recent announcements, one thing is clear.  Trump intends to step up the government’s enforcement of the H-1B program.  Investigations are likely to lead to Employer’s facing penalties for violations as well as requiring the Employer to pay back-pay to employees.

There are three levels of penalties for LCA violations as follows which apply on or after 01/16/20:

  1. Max penalty of $1,928.00 for violations related to LCA posting notice requirements, misrepresentation on LCA, early termination penalties, payment of H-1B fees by employees or public access violations, etc.
  1. Max penalty of $7,846.00 for violations to include willful failure to pay LCA wages, LCA posting notice requirements, willful misrepresentation on LCA, discrimination against an employee, etc.
  1. Max penalty of $54,921.00 for willful violation resulting in the displacement of a US worker as a result of the above violations.

With increased investigations on the horizon, it is vital that Employers review all of their Public Access Files and ensure that they are and have been paying the offered wage.  Employers also need to ensure they have filed amendments with USCIS where there has been a material change in employment.

At Patel Law Group we believe that it is important for our clients to be ready for a potential audit from the Department of Labor (DOL). Because of this, we offer our clients the opportunity to have an experienced Immigration Attorney conduct an Internal audit of their Public Access Files (PAF). This mock audit will include a thorough review of their internal files and the opportunity to ask questions regarding a potential audit.  If you would like further details, including pricing, please e-mail our Partner, Chris Prescott at cprescott@patellegal.com

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