Secretary of Labor Alexander Acosta has announced that the Department of Labor (DOL) will more aggressively enforce laws governing the administration and enforcement of non-immigrant visa programs. The DOL will continue to work with the Departments of Justice and Homeland Security to prioritize and publicize investigations into violations of visa programs, such as the H-1B, H-2A, H-2B and PERM (Labor Certification-Green Card processing) programs. The agency plans to increase its exercise of authority to refer cases of alleged criminal fraud to its Office of Inspector General (OIG).
The OIG’s efforts thus far have led to convictions of attorneys, employers, recruiters, and government employees. The DOL stated it will:
- Direct the Department’s Wage and Hour Division (WHD) to use all of its tools in conducting civil investigations to enforce labor protections provided by the visa programs.
- Direct the Department’s Employment and Training Administration (ETA) to develop proposed changes to the Labor Condition Application, and for the WHD to review its investigatory forms, to better identify systematic violations and potential fraud, and to provide greater transparency for agency personnel, U.S. workers and the general public.
- Direct the WHD, ETA and the Office of the Solicitor to coordinate the administration and enforcement activities of the visa programs and to make referrals of criminal fraud to the OIG.
- Establish a working group made up of senior leadership from the ETA, WHD, and Solicitor’s office to supervise this effort and coordinate enforcement to avoid duplication of efforts and maximize the efficiency of the Department’s activities regarding the visa programs. The working group shall invite OIG to send representatives to participate in its efforts.
Per the announcement, the DOL will emphasize WHD civil investigations, which can affect such visa categories as H-2As, H-2Bs, and H-1Bs. The DOL intends for these changes to increase transparency for agency personnel, and to prevent any negative impact on U.S. workers and the general public.
Employers should match the DOL's increased enforcement efforts by vigorously carrying out risk assessments and maintaining a comprehensive compliance program. Employers are encouraged to systemically review compliance mechanisms. These assessment plans should include a review of the employer’s public access files for H-1Bs, ensuring that employers are complying with H-2A and H-2B requirements such as treating corresponding domestic workers similarly, and providing adequate housing conditions for agricultural workers. Further, employers should systematically review their compliance with DOL PERM processing. Employers can expect an increase in worksite audits and investigations, making such proactivity crucial.