H-1B Site Visits - An Introuduction

Apr 27, 2017

H-1B Site Visits – An Introduction  

By: Arti K. Desai, Esq., Senior Associate Attorney at Nair Law Group

 

On April 5, 2017, the U.S. Department of Labor (“DOL”) announced its plans to protect US workers from supposed existing “Fraud and Abuse” in the H-1B Program.   As part of its efforts, the  “DOL” has outlined a few actions through which it will achieve its goals, one of which, being the “rigorous use of its existing authority to initiate investigations of H-1B program violators.” The practical implications of these new directives will result in an increase in the DOL’s enforcement efforts to investigate and prosecute primarily H-1B dependent companies. Where does the DOL get its authority to investigate an H-1B employer? What are mechanics of a site visit? This article is one in a series of articles which will discuss among other things; the regulatory authority of the DOL to conduct such visits, the mechanics of the actual visit and its resulting consequences.

 

Who conducts a site visit? Who has this authority? While the Immigration and Nationality Act (INA) as amended by the Immigration Act of 1990 created the H-1B classification for temporary employment of foreign workers; the responsibilities of implementation of the H-1B program are divided among several federal agencies including DOL’s Employment Training Administration (ETA), the Department of Homeland Security’s U.S. Citizenship and Immigration Service (USCIS), U.S Department of State (DOS), and the DOL Employment Standards Administration’s Wage and Hour Division(WHD).

 

Under the current law, the ETA certifies the Labor Condition Application (LCA) which must be submitted by the employer to USCIS. As part of its adjudication process, USCIS reviews both the LCA and accompanying petition to confirm whether or nor the proffered specialty occupation position and prospective H-1B employee meet the statutory minimums for an H-1B classification. If the prospective employee is outside the US, the DOS gets involved to issue a visa to work in the United States. Once an employer obtains the certified LCA and the approved petition, the Wage and Hour Division enforces the attestations within the LCA, which includes the material facts and labor condition statements.

 

The Wage and Hour Division has been tasked with the responsibility to ensure that workers are receiving the wages promised on the LCA and are working in the occupation and at the location specified. An H-1B related investigation by the Wage and Hour Division is triggered when one of these events take place:

 

  1. Wage and Hour Division receives a complaint or specific credible information from an aggrieved person or organization. The aggrieved person can be the H-1B worker, laid off US employee or a random individual. All complaints are confidential; the name of the worker and the nature of the complaint will not be disclosed; or
  2. Random investigations may be triggered if the Secretary of Labor finds or has a reasonable cause to believe that an employer has committed willful failure to meet a condition specified in the LCA or willfully misrepresented a material fact in the LCA.

 

Under the new directives set forth by President Trump’s recently signed Executive Order known as “Buy American, Hire American”, we anticipate an increase in targeted and random site visits, audits and investigations of primarily H-1B dependent employers and employers who place H-1B workers at third party worksites. The next article in the series will discuss the actual mechanics of a site visit and what to expect when the DOL comes knocking on your door. Please stay tuned.