CIENT ALERT: USCIS AND DOL TEAM UP IN H-1B AND E-3 ENFORCEMENT

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August 7, 2020

Dear Valued Clients:

On July 31, 2020, the United States Citizenship and Services (USCIS) announced that they entered into a memorandum of agreement (MOA) with the Department of Labor (DOL) to provide access and share information about immigrant and nonimmigrant petition records and data within the Office of Foreign Labor Certification’s labor certification and labor condition application databases.1

The MOA specifically states that the agreement will place processes by which USCIS will refer suspected employer violations within the H-1B program to USCIS.2 This MOA is a part of the Trump Administrations effort to “protect the interest of American workers” during the COVID-19 pandemic and ensure “that the use of foreign labor does not harm American workers.” The MOA gives the DOL the ability to launch investigations of potential fraud and abuse in the H-1B program.3 Examples of H1-B fraud and abuse include4:

  • The H-1B worker is not or will not be paid the wage certified on the Labor Condition Application (LCA).
  • There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers.
  • The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description.
  • The H-1B worker has less experience than U.S. workers in similar positions in the same company.
  • The H-1B worker is not working in the intended location as certified on the LCA.
  • An employer files a labor condition application with ETA that misrepresents a material fact;
  • An employer fails to pay wages (including benefits provided as compensation for services), as required by LCA regulations (including payment of wages for certain nonproductive time);
  • An employer fails to provide working conditions as required by LCA regulations;
  • An employer files a labor condition application for H-1B nonimmigrants during a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment;
  • An employer fails to provide notice of the filing of the labor condition application;
  • An employer fails to specify accurately on the labor condition application the number of workers sought, the occupational classification in which the H-1B nonimmigrant(s) will be employed, or the wage rate and conditions under which the H-1B nonimmigrant(s) will be employed;
  • A U.S. worker is displaced (including when a U.S. worker employed by a secondary employer at the worksite where an H-1B worker is placed is displaced);
  • An employer fails to make the required displacement inquiry of another employer at a worksite where H-1B nonimmigrant(s) were placed;
  • An employer fails to recruit in good faith;
  • An employer displaces a U.S. worker in the course of committing a willful violation of any of the conditions, described above, or willful misrepresentation of a material fact on a labor condition application;
  • An employer requires or accepts from an H-1B nonimmigrant payment or remittance of the additional $750/$1,500 fee incurred in filing an H-1B petition with the DHS;
  • An employer requires or attempts to require H-1B nonimmigrant to pay a penalty for ceasing employment prior to an agreed upon date;
  • An employer discriminates against an employee because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of the H-1B Program, or has cooperated or has sought to cooperate in an investigation or other proceeding concerning the employer’s compliance with H-1B requirements;
  • An employer fails to make available for public examination the application and necessary document(s) at the employer’s principal place of business or worksite:
  • An employer fails to maintain documentation relating to regulated H-1B employment actions; and
  • An employer fails otherwise to comply in any other manner with the provisions governing Labor Condition Applications; requirements for employers seeking to employ nonimmigrants on H-1B visas in specialty occupations; or the enforcement of H-1B Labor Condition Applications.

The news marks the first time that the immigration agencies have been transparent with the public about information and data sharing.5 Some analysts believe this transparency is a clear signal that USCIS and the DOL are proactively looking for violations.6 This could ultimately lead to penalties:7

  • Civil monetary penalties in an amount not to exceed $1,000 per violation for:
    • Violations pertaining to strikes/lockouts or displacement of U.S. workers;
    • Substantial violations pertaining to notifications, labor condition application specificity, or recruitment of U.S. workers;
    • Misrepresentations of material fact on the labor condition application.
  • Barring the employer from participating in H-1B program for at least one (1) year for:
    • Early termination penalties paid by the employee;
    • Payment of the employee of the additional $750/$1,500 filing fee; or
    • Violations regarding public access requirements that impede the ability of to determine whether a violation has occurred or the ability of the public to have informational needed to file complaint or report information regarding a potential violation.
  • Civil monetary penalties in an amount not to exceed $5,000 per violation for:
    • Willful failures pertaining to wages/working conditions, strike/lockout, notification, labor condition application specificity, displacement (including placement of an H-1B nonimmigrant at a worksite where the other/secondary employer displaces a U.S. worker), or recruitment;
    • Willful misrepresentations of a material fact on the labor condition application; or
    • Discrimination against an employee, in violation of protections from employer retaliation.

Additionally, this MOA could have the effect of employers backing away from hiring H-1B employers because of the scrutiny.8 As such, it is imperative that H-1B and E-3 employers ensure that their Public Access Files (PAFs) are in order and maintained in case they are subject to audit.

Meyer Law Group can work with you to ensure your company is complaint with the DOL’s wage and hour issues and regulations related to the H-1B and LCA Compliance. If your attorney has not been maintaining PAFs, then now is the time to consider “spring” cleaning. Please contact Meyer Law Group if you have any questions or concerns regarding this policy.

Brandon Meyer
Managing Partner

Paul Chen
Partner

Jennielyn Alcarion
Senior Attorney

1 https://www.dol.gov/newsroom/releases/dol/dol20200731
2 Id.
3 Id.
4 https://www.uscis.gov/report-fraud/combating-fraud-and-abuse-in-the-h-1b-visa-program;  https://www.law.cornell.edu/cfr/text/20/655.805
5 https://www.bloomberg.com/news/articles/2020-07-31/u-s-labor-immigration-agencies-team-up-on-h-1b-enforcement
6 Id.
7 https://www.law.cornell.edu/cfr/text/20/655.810
8 Id.