On October 9, 2017, U.S. Secretary of Labor Alexander Acosta issued a statement announcing the Trump administration's commitment to battling Federal visa program fraud and abuse. He has instructed the U.S. Department of Labor (DOL) to vigorously enforce all laws under its jurisdiction and aggressively prosecute violators.
The administration's stance is that those committing fraud are not only violating laws, they are undermining the ability of American workers to provide for their families. Employers who hire staff using H-1B visas must clearly understand the regulations or risk being caught in the crack-down.
Understanding H-1B Visa Fraud
The purpose of the H-1B visa program is to assist U.S. employers who have difficulty filling highly-skilled positions from within the pool of U.S. workers. An H-1B visa allows foreign nationals with the necessary skills to legally work in the United States. When the program is abused, qualified and willing U.S. workers may be bypassed for employment opportunities or otherwise unfairly disadvantaged.
The most common ways that entities engage in H-1B visa fraud include:
Failing to pay the employee the wage that was indicated on the Labor Condition Application (LCA)
Paying the H-1B worker a wage that is different from that being paid to U.S. workers performing similar duties
Assigning duties that are significantly different from those indicated in the H-1B petition
Hiring an H-1B worker with less experience than U.S. workers for a similar position within the company
Employing H-1B workers in a location other than that which was specified on the LCA
Enforcement of these violations is primarily focused actions that result in discrimination against the U.S. worker.
Increased Enforcement Efforts
H-1B fraud and abuse cases are investigated by U.S. Citizenship and Immigration Services (USCIS), the government agency responsible for overseeing lawful immigration into the country. Other agencies involved in enforcement include the Department of Justice, Department of Homeland Security, and the Department of Labor (DOL).
Following his recent review of the current policies and procedures, Acosta has advised the DOL to take the following actions to improve enforcement efforts:
Civil investigations for labor protection enforcement
Creation of proposals for updates to the labor condition application
Review of investigatory forms
Coordination between the Office of the Solicitor and the Employment and Training Administration
Creation of a senior leader's group to supervise efforts
The DOL has stated that it will actively pursue suspected fraud and abuse cases and regularly engage in criminal referrals.
Immigration's Impact on Florida Employers
In an effort to protect the U.S. Citizens in the labor force, the Trump administration has also cracked down on illegal immigration. He issued an executive order earlier this year cutting Federal funding for cities considered to be a "sanctuary" for undocumented workers.
This can have a major impact on many cities in the state of Florida. A recent study found that South Florida ranked fifth in the nation for the number of unauthorized workers. Florida employers must be aware of the stiff penalties for the inappropriate hiring of H-1B workers and for failing to require that all workers have proper documentation.
Protect Your Business With Proper Planning
The stiff penalties for failure to abide by immigration rules and regulations can cripple a business. Hiring a qualified attorney to review your policies and procedures can help to protect against unintentional violations. At Danz and Kronengold, we believe that proper planning is one of the best ways to ensure legal compliance. Contact us today to learn how we can help.