The US Labor Department is beefing up its role in enforcing temporary worker rules as the Trump administration spikes fees and oversight for employers of visa holders, putting companies on notice that they must comply or risk being blocked.
Attorneys say the new initiative—dubbed Project Firewall by Labor Secretary Lori Chavez-DeRemer—marks a major posture change for the DOL and other government agencies in the immigration ecosystem.
Companies that have used the H-1B program to attract foreign talent like
“They’re going to be combing through everything, using the full force of the federal government to make a big splash for anyone who they believe is not playing by the rules,” said Christopher Thomas, a partner at Holland & Hart LLP.
Employers could expect to see on-site visits from DOL’s Wage and Hour officers and, if discrepancies in record-keeping or in a worker’s pay are found, could be on the hook for tens of thousands of dollars in civil penalties or face disbarment.
The investigations, which will be approved by DeRemer herself, are aimed at “rooting out fraud and abuse” of the H-1B program, the secretary said in a statement.
“The Trump Administration is standing by our commitment to end practices that leave Americans in the dust. As we reestablish economic dominance, we must protect our most valuable resource: the American worker,” she said.
According to the department’s website, only five employers have been banned in the last two years. “If there is so much abuse, why aren’t more people being debarred?” Charles Kuck, managing partner of Kuck Baxter Immigration, said during a live-stream Wednesday.
The expanded DOL enforcement effort adds to other moves by President
Employer Obligations
H-1B visas are used most by the tech industry, whose leaders say there’s not enough qualified applicants with the skills needed in the US. The visas are temporary, lasting as long as six years, but can be extended indefinitely if a company has sponsored a worker’s employment-based green card application for permanent residency.
To obtain an H-1B visa, employers must submit a labor condition application that’s been certified by the DOL and retain what’s known as a “public access file” at the work-site. These files contain information about the guest worker’s wage, how it complies with prevailing wage regulations, and a copy of the LCA.
Federal law mandates that the hiring of an visa worker must not negatively impact the pay and working conditions of a US citizen employee. DOL regulations require employers to compensate H-1B holders at a comparable rate to what American workers would be paid through the prevailing wage.
DOL investigations initiated through Project Firewall will likely be audits of companies’ public access files, said Thomas.
These investigations have historically been driven by tips from workers and conducted by mail or other remote communications, he said. But the agency’s recent messaging suggests it will begin taking a more aggressive approach.
“This administration is trying to show the American public that its going to root out abuse in every area and place the American worker first always,” said Nandini Nair, a partner with AY Strauss representing employers and workers.
One, Two Punch
DOL’s enforcement measures, along with Trump’s other changes, are overwhelming employers and making companies rethink positioning jobs in the US, attorneys said.
The president also plans to order the DOL to raise the H-1B prevailing wage structure in a move intended to limit the use of visas to undercut wages that would otherwise go to American workers, according to his Sept. 19 proclamation. Trump’s previous attempts at this in his first administration were blocked by federal courts because the agency didn’t go through the required rulemaking process.
The Department of Homeland Security has also signaled plans to prioritize highly-skilled, highly-paid foreign workers by revamping the current H-1B lottery, another redo from his first administration.
“This is classic President Trump,” said Brian Coughlin, a partner at Fisher Phillips. “They tend to flood the zone with lots of headline grabbing type actions.”
“The reaction has been ‘it’s all a bit too much,’” said Thomas, noting employers are experiencing a “one, two punch.”
“Companies are thinking that maybe they shouldn’t be staffing these positions in the United States at all, maybe this is not the right country for them to be doing business,” he added.
Full Government Approach
The DOL said it’s also working with the Equal Employment Opportunity Commission, the Justice Department, and US Citizenship and Immigration Services on H-1B enforcement.
The inter-agency cooperation is to “combat discrimination against American workers and ensure the law is properly enforced by leveraging the full force of the federal government,” the department said.
That partnership could “lead to a string of investigations,” Nair said. “It creates a situation where clients need to look at every aspect of their organization and not just think of it as an immigration investigation.”
While DOL and EEOC penalties for violations are civil fines, attorneys said these investigations could also lead to criminal charges if the government suspects a company of unlawful behavior.
“Small businesses have people that are so busy trying to keep their business afloat that it’s sometimes understandable that they don’t have all of their compliance files in order,” Coughlin said. “And if they’re selected for an audit, the results can be devastating.”
To contact the reporter on this story:
To contact the editors responsible for this story: