The new head of the U.S. Department of Labor, Alexander Acosta, will be “aggressively” looking into fraud and abuse of visa programs, particularly the Labor Condition Application (LCA) provisions of the H-1B classification. There are a number of regulations aimed at protecting U.S. workers, including minimum wage standards, notification requirements, verification of working conditions and ensuring that U.S. workers are not displaced by foreign workers. The Department of Labor’s Wage and Hour Division is tasked with investigating violations of the LCA requirements and has the power to penalize employers for violations. In a news release, the Department of Labor indicates that it will “vigorously” enforce those laws and will refer possible criminal activities to the Office of the Inspector General. Changes to the LCA form are also on tap.
The labor secretary is:
- Directing the department’s Wage and Hour Division to use all its tools in conducting civil investigations to enforce labor protections provided by the visa programs.
- Directing the department’s Employment and Training Administration (ETA) to develop proposed changes to the LCA, and for the division to review their investigatory forms, to better identify systematic violations and potential fraud, and provide greater transparency for agency personnel, U.S. workers and the general public.
- Directing the division, ETA and the Office of the Solicitor to coordinate the administration and enforcement activities of the visa programs and make referrals of criminal fraud to the Office of the Inspector General.
- Establishing a working group made up of senior leadership from ETA, the division and Solicitor’s office to supervise this effort and coordinate enforcement to avoid duplication of efforts and maximize the efficiency of the department’s activities regarding the visa programs. The working group shall invite OIG to send representatives to participate in its efforts.
Four Senators recently questioned the DOL regarding its efforts to curb H-1B visa fraud after a 60 Minutes episode reported on U.S. worker complaints about being replaced by H-1B workers. The Department response noted that much of the DOL’s power under the Immigration and Nationality Act is limited and that Congress must take legislative steps to provide the DOL with better tools to oversee the visa program. While immigration reform is on President Trump’s to-do list from his campaign, it is unclear whether and how soon Congress will be taking up the issue as they plan to tackle Healthcare, Tax, and Infrastructure before they get to any immigration legislation.
For now, expect more Wage and Hour investigations of H-1B employers to be conducted.