December 14, 2018
By Jaclyn Diaz
Employers relying on foreign work visas to staff their workplace should expect to face additional scrutiny, a senior Labor Department official told Bloomberg Law.
The DOL is looking to crack down on employers that break the law, focusing on those that may have committed fraud in applying for various work visa programs, according to an official who spoke on the condition of anonymity. Visa programs under review will include those for seasonal workers in agriculture and other sectors, as well as specialized, high-skilled workers.
Any “entity that breaks the law,” will be subject to a streamlined process for suspension or debarment from receiving work visas, a DOL spokeswoman told Bloomberg Law.
Under a speedier and more stringent process of auditing visa applications, potentially more employers could be facing punishment for misconduct like misrepresenting what type of work employees will be doing in an application and improperly paying workers. Recently, the DOL’s Office of Federal Contract Compliance Programs concluded that Cisco Systems Inc. discriminated against U.S. workers by favoring immigrant visa holders for job openings. The company used H-1B visas to hire more than a thousand foreign workers.
Cracking down on fraud is just the latest effort by the DOL to scrutinize guestworker visa programs. It and the other agencies involved in the immigration process have been tasked with finding ways to ensure U.S. workers are given priority over immigrant workers, a stipulation included in President Donald Trump’s Buy American and Hire American executive order.
The department previously took the position that it had debarment authority only with seasonal worker visas under the H-2A and H-2B programs. Those visas allow employers in agriculture and other sectors to hire seasonal help to make up for an anticipated shortage of U.S. workers, Woodbridge, Va., immigration attorney Mary Pivec told Bloomberg Law. However, the DOL maintains it also has the authority to punish employers that use a wider scope of foreign work visas, like the H-1B program.
Expanding its scope to include the H-1B program, means the Labor Department also will look at companies that rely on roughly 85,000 high-skilled foreign workers allowed into the country each year. H-1B visas are extremely popular in the tech industry, especially among IT staffing companies like Cognizant Technology Solutions, Tata Consultancy Services, and Infosys.
As of July, there was an uptick in Wage and Hour Division investigations into employers using the H-1B skilled guestworker visa program. There have also been reports of an increase in audits by the Department of Homeland Security into employer use of H-2B visas.
The DOL announced in September that it would be conducting a “nationwide initiative to strengthen compliance” with the provisions of the H-2B temporary visa program in the landscaping industry. The fall regulatory agenda posted in October included rules that indicated the department’s plans to make sweeping changes the visa programs, including for the H-2A and H-2B visas.
A rule scheduled for June 2019 looks to add all foreign labor certifications, which would include H-1B, H-2A, H-2B, and permanent work visas, squarely under DOL’s debarment authority laid out in the Non Procurement Common Rule.
The process of handling a complaint against an employer and auditing it is a long one—sometimes taking upward of a year and a half, the DOL official said. Since the seasonal visas are highly sought-after, the agency wants to ensure it’s effective in monitoring the application process, he said, adding that completing an audit in two months would be ideal.
Pivec said the new approach is an attempt to hurt employers that appear to not hire enough American workers and to restrict the number of foreign workers coming into the country.
“The agricultural industry is already suffering from a lack of workers,” she said. “Other administrations would back off in times like these when there’s such a labor shortage.” But the Trump administration seeks “to make it harder for foreign workers to live and work in the U.S. while totally disregarding the market realities in terms of labor shortages and market needs.”
Speeding up the audit process will mean addressing the staffing issues that have plagued the ETA and the Wage and Hour Division, said Patricia Smith, labor solicitor during the Obama administration. Smith now works as senior counsel with the National Employment Law Project.
She said that when she was at the DOL, the ETA processed the visas upfront but that it never had resources to properly dive into what they were getting. The WHD was doing some audits into potential labor violations on the back end, but usually after the fact, Smith said. The Obama administration tried to beef up the program, she said, but struggled to do so.
It would be good if more resources were allocated to looking into potential wrongdoing by employers, she said.
Pivec recommends employers improve their record keeping ahead of applying for a visa and in the event of problems, hire a lawyer early to avoid debarment.