On June 6, 2017, the new Secretary of the Department of Labor Alexander Acosta announced a new set of initiatives aimed at combatting fraud and abuse in employment-based nonimmigrant visa programs. The agency will conduct more investigations to determine whether employers are complying with visa labor wage rules. DOL has indicated it will refer cases of alleged criminal fraud to its Office of Inspector General or to the U.S. Department of Justice for prosecution.
The enforcement initiatives include:
- Increased audits and investigations of employers to ensure that they are complying with H-1B, H-1B1, E-3, H-2A and H-2B program rules. For the H-1B, the employer attests it will:
- Pay wages which are the higher of the Actual Wage level that is paid to all other employees with similar experience and qualifications for the specific employment in questions or the Prevailing Wage level for occupational classification in the area of intended employment;
- Pay the nonimmigrant worker the required wage for time in nonproductive status due to a decision of the employer or due to the nonimmigrant’s lack of a permit or license.
- Offer the nonimmigrant worker benefits and eligibility for benefits on the same basis, and in accordance with the same criteria, as offered to US workers.
- Not adversely affect the working conditions of other workers similarly employed.
- Ensure all nonimmigrant workers will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to US workers;
- Making changes to the H-1B labor condition application (LCA) to give greater capacity to identify employer violations and potential fraud.
- Greater transparency including more public disclosure of information about employers who use foreign labor programs.
- Increased coordination investigatory and enforcement units including the Inspector General who can pursue criminal actions.
Recommended Action Items
Employers are advised that it’s time to ensure strict compliance with immigration regulations, and it’s time to adopt rigorous immigration compliance programs, starting with companywide audits of case files and practices.
- Corporate immigration policy development and training (onsite or web-based training to HR staff)
- Due diligence prior to corporate reorganizations and/or mergers
- Labor Condition Application compliance review
- PERM file maintenance audits covering past 5 years
- I-9 employment eligibility compliance audits
- E-Verify and electronic I-9 counseling