The Department of Labor (DOL) has recently announced a more aggressive enforcement policy directed at employment-based nonimmigrant visa programs, stating that they will more “vigorously” enforce all laws within its jurisdiction and take civil and criminal referral actions against entities believed to be committing visa program fraud and abuse. This announcement is in line with President Trump’s recent “Buy American and Hire American” Executive Order, which set forth his Administration’s policy to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad.” The Executive Order also called on the Secretaries of State, Labor, and Homeland Security and the Attorney General of the United States to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

The initiatives outlined in the recent announcement include the following:

• Directing the department’s Wage and Hour Division to use all available tools in conducting civil investigations. This will likely include the increased use of investigation, audits, and/or site visits.
• Developing changes to the Labor Condition Application, a required component of all H-1B filings, to better identify systematic violations and potential fraud, and provide greater transparency for agency personnel, U.S. workers, and the general public.
• Making referrals of criminal fraud to the Office of the Inspector General.
• Coordinating the administration and enforcement activities of visa programs.

What Employers Need To Know   While details on the proposed changes are still not certain, employers should expect a continued increase in the allocation of resources and public attention into enforcement and inspection activities, as well as a continued increase in review and scrutiny of all immigration filing processes and procedures.

Employers are also reminded that the DOL makes certain information contained within their system on various immigration forms, such as the LCA, PERM application, Prevailing Wage Requests, etc. available to the public.

The announcement also highlights the DOL’s new policy of making criminal fraud referrals to the Department of Justice for alleged abuse of immigration programs, meaning that employers should be aware of the substantial civil and criminal liability associated with immigration fraud and/or abuse.

It is anticipated that other federal agencies tasked with responsibility for a portion of U.S. immigration (U.S. Citizenship and Immigration Services, Department of State, Department of Homeland Security) will also be implementing changes that will further affect current U.S. immigration processes and procedures. This DOL announcement is in line with President Trump’s instructions for all governmental agencies to review internal policies with a goal to strengthening the enforcement mechanisms and to dissuade fraud and abuse.

Foster will provide additional updates on future immigration policy changes or legislation which may follow the implementation of recent Executive Orders via our firm’s website at www.fosterglobal.com.