The U.S. Department of Labor announced on September 19 the launch of Project Firewall, an H-1B enforcement initiative to ensure that “…employers prioritize qualified Americans when hiring workers and holding employers accountable if they abuse the H-1B visa process.”
The USDOL news release states that, as “…authorized by federal law, the department will conduct investigations of employers through Project Firewall to maximize H-1B program compliance. To achieve this goal, the Secretary of Labor will personally certify the initiation of investigations for the first time in the department’s history. This historic action leverages existing authority granted to the Secretary if reasonable cause exists that an H-1B employer is not in compliance.”
Secretary-certified investigations, as well as other H-1B-related investigations, are important tools the USDOL uses and will be used in Project Firewall to hold employers accountable. Violations may result in the collection of back wages owed to affected workers, the assessment of civil money penalties, and/or debarment from future use of the H-1B program for a prescribed period of time.
The USDOL news release also states that USDOL “…will share information and coordinate with relevant government agencies, as permitted by law, to combat discrimination against American workers and ensure the law is properly enforced by leveraging the full force of the federal government.”
This is a significant recent development for U.S. employers. Some of the most important compliance issues employers must review relate to:
- Wage Requirements: Employers must pay H-1B workers at least the higher of the “actual wage” (what they pay to similarly qualified and positioned U.S. workers) or the “prevailing wage” (the wage paid for the occupation in the area).
- Labor Certification Applications or LCAs: Before filing an H-1B petition with USCIS, employers must obtain a certified LCA from the DOL. Employers must provide proper notification of the LCA filing to U.S. workers at the worksite (this could be complex).
- Public Access Files or PAFs: Employers must maintain a file containing the LCA and other supporting documentation, making it available for public review.
- Working Conditions: The employment of H-1B workers should not adversely affect the working conditions of similarly employed U.S. workers, and there should be no existing strike or lockout at the worksite.
- Benching: Employers are generally liable for wages during periods when an H-1B worker is not working (on “bench” time) unless the non-productive status is due to the worker’s personal leave or other non-work-related circumstances.
The Wage and Hour Division (WHD) of the USDOL is the primary division that prosecutes H-1B violations by investigating and enforcing terms of the LCA, ensuring H-1B workers are paid correctly, work at the specified location and occupation, and are not displaced by U.S. workers. The WHD conducts audits and investigations, initiated by complaints or credible information, which can result in penalties like fines, back wages, and bans on hiring H-1B workers.
