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Labor Secretary Alexander Acosta may have some legal hurdles to overcome to target visa program violators as he recently promised.
Under the Immigration and Nationality Act, the DOL can only investigate employers for violations of the H-1B skilled guestworker program in four circumstances:
But that practice was shut down by the U.S. Court of Appeals for the Eighth Circuit in 2015. The unanimous decision from a three-judge panel held that the law only allows the DOL to investigate what’s in the complaint itself, and nothing more.
A similar case is pending before a federal judge in New York. If it reaches the Second Circuit, that appeals court is “fairly certain” to rule the same way, Pivec said.
But once they “get in the door,” the DOL makes “pretty broad” records requests, Kevin Miner of Fragomen, Del Rey, Bernsen & Loewy, told Bloomberg BNA June 15.
There can be a debate as to how many of the records are relevant to the complaint being investigated, said Miner, chairman of the American Immigration Lawyers Association’s Liaison Committee with the DOL.
“The employer has an important decision to make at the beginning of the investigation,” he said. It can challenge the DOL’s records request by turning over only those it believes are relevant to the complaint, or it can turn over everything requested, with the knowledge that it’s compliant with the H-1B program anyway, he said.
And what of the other bases for an investigation?
Random investigations are only allowed where an employer has been found to be a willful violator of the H-1B program in the past five years, Miner said.
A DOL concerned about protecting U.S. workers from displacement is likely to make use of investigations launched via the personal certification of the secretary, Lynden Melmed of Berry, Appelman & Leiden in Washington, D.C., told Bloomberg BNA June 14.
At the same time, it may be difficult for the secretary himself to certify each individual investigation in this area, said Melmed, former chief counsel at U.S. Citizenship and Immigration Services.
And there’s an investigation based on “credible information” from a “reliable source,” which could come from the USCIS, Pivec said. She mentioned the agency’s recently established email tip line for reporting H-1B violations as well as the State Department and the E-Verify electronic employment verification system as potential sources of information.
“What I think the Labor Department is anticipating doing is using these external sources to initiate, or as a basis for going forward with, the wage and hour audit process,” Pivec said.
The “flip side” of this interagency information-sharing is the potential for the USCIS to revoke an H-1B petition based on information in the labor condition application, which must first be filed with the Labor Department, Melmed said. If the LCA and the H-1B petition filed with the USCIS don’t match up, that can be the basis for revocation, he said.
But the DOL is likely to stick with a mostly complaint-driven process, considering the limitations on the agency’s authority, Miner said. But the agency is working on making it easier for workers to file complaints, he said.
The tip email system “makes it easier for individuals to begin the complaint process,” Miner said. The DOL also has talked about streamlining the WH-4, the form complainants fill out that allows the agency to determine whether there’s reasonable cause to launch an investigation, he said.
Even if there aren’t more investigations, the DOL could take “a more hard-line approach” in terms of the penalties it applies, Miner said. If workers’ jobs are incorrectly classified, that can make a big difference in the prevailing wage they need to be paid, he said.
In those situations, “the back pay component alone can climb quickly to the tens of millions of dollars,” coupled with hundreds of thousands in civil penalties and possible debarment from the H-1B program, he said.
“They’re going to explore every avenue to conduct investigations both on their own and through receipt of other information,” Melmed said. “That’s a message from the top,” he said.
To contact the reporter on this story: Laura D. Francis in Washington at firstname.lastname@example.org
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