Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The U.S. Departments of Labor (DOL) and Homeland Security (DHS) have jointly announced a new initiative to share data and records on immigrant and nonimmigrant petitions and workers. The purpose of the initiative is to facilitate investigations of an employer's suspected fraud or misuse of the H-1B specialty occupation visa program, among others (specifically, the EB-2 and EB-3 immigrant programs).
Formalizing the new partnership, on July 31, 2020, the DOL entered into a Memorandum of Agreement with the DHS (acting through U.S. Citizenship and Immigration Services, USCIS). Under the terms of the new agreement, the two departments will provide each other access to and share information about both immigrant and nonimmigrant petition records and data contained within the DOL Office of Foreign Labor Certification’s labor certification and labor condition application databases. Notably, this mandate extends to the EB-2 and EB-3 immigrant petition classifications, which are the qualifying legal permanent resident provisions. EB-2 and EB-3 visas are supported by underlying permanent labor certifications (approved by the DOL) and are among the most popular types of permanent immigrant visas for skilled professionals or academics.
This agreement “establishes processes by which USCIS will refer suspected employer violations within the H-1B program to the U.S. Department of Labor that USCIS identifies in the course of adjudicating petitions – a source of information never previously accessed by the Department for enforcement purposes – and conducting administrative and targeted site visits.” Based on the new commitment to sharing labor certification information underlying “immigrant petitions,” it is expected that the USCIS will also refer to the DOL suspected employer violations regarding the employment of EB-2 and EB-3 immigrants (confirmed by the most recent presidential proclamation’s instructions to the DOL to institute measures regulating the H-1B, EB-2, and EB-3 visa programs).
The agreement seeks to enhance enforcement of regulations underlying immigrant and nonimmigrant programs, and was instituted in the wake of Presidential Proclamation 10052 (P.P. 10052), which was widely publicized for implementing an entry ban on certain categories of immigrant and nonimmigrant workers. Of note, the proclamation’s “Additional Measures” section calls for enhanced enforcement protocols to regulate the H-1B, EB-2, and EB-3 nonimmigrant and immigrant programs. This has been an easily overlooked provision that we have been monitoring.
P.P. 10052 instructed the DOL Secretary of Labor to make use of his enforcement power and to “consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers in violation of section 212(a)(5)(A) or (n)(1) of the INA (8 U.S.C. § 1182(a)(5)(A) or (n)(1)).”
8 U.S.C. § 1182(a)(5)(A) requires that employers demonstrate that there are no sufficient U.S. workers who are able, willing, qualified, and available to perform the role, and that employment will not adversely affect wages and working conditions of similarly employed workers in the United States.
The proclamation adds that “the Secretary of Labor shall also undertake, as appropriate, investigations pursuant to section 212(n)(2)(G)(i) of the INA (8 U.S.C. § 1182(n)(2)(G)(i)).” For background, this section provides the Secretary of Labor with the authority to investigate employers’ compliance with obligations regarding wages paid and working conditions associated with employees who hold H-1B visas (8 U.S.C. § 1101(a)(15)(H)(i)(b) (defining specialty occupation workers)), with attention to “an employer’s practices or employment conditions, or an employer’s compliance with the employer’s labor condition application.” The labor condition application is a precursor filing by the H-1B visa employer with the DOL that certifies working conditions and a minimum prevailing wage.
There is authority for this review. Per 8 U.S.C. 1182(n)(2)(G)(i), the Secretary of Labor “may initiate an investigation of any employer that employs nonimmigrants described in section 1101(a)(15)(H)(i)(b) of this title [the H-1B specialty occupation program] if the Secretary of Labor has reasonable cause to believe that the employer is not in compliance with this subsection.”
New Compliance Requirements for Employers
The new guidance confirms that compliance with H-1B, EB-2, and EB-3 program provisions will become increasingly paramount. Employers should prepare for the possibility of administrative and targeted site visits. Employers that utilize immigrant and nonimmigrant workers may consider taking proactive steps in response to increased enforcement, such as maintaining Public Access Files and maintaining close awareness of employees’ actual paid wages and work conditions to ensure that employees work pursuant to the terms and conditions of employment proffered in their approved immigrant and nonimmigrant petitions and labor certifications (which detail all aspects of employment, such as salary, job duties, and geographic work location). Employers of EB-2 and EB-3 immigrant workers should ensure documentation associated with recruitment and labor certification (PERM) is maintained and available.
For example, employers may consider conducting internal audits of labor certifications and underlying petition documentation (verifying the worker’s current duties, wages, and geographic location of employees) to ensure that employment of H-1B employees complies with the terms of employees’ underlying labor certifications and nonimmigrant/immigrant petitions. Deviations in job duties, wages paid, and geographic work location may necessitate amendment in some cases (depending on the circumstances) in order to avoid liability for fraud or misuse of the H-1B, EB-2, EB-3 and related PERM process programs. Thus, it is important that employers remain aware of changes in the nature of immigrant and nonimmigrant employees’ roles and employment.
Please contact counsel should you require any assistance in navigating the newly announced enforcement initiative or guidance in how to institute recommended practices in the workplace for employment of nonimmigrant and immigrant workers.