Increased DOL Enforcement On The Horizon

Friday, August 17, 2012 - 14:29

In an already excessively regulated employment climate, the U.S. Department of Labor (DOL) is taking steps to ramp up enforcement of the H-1B nonimmigrant visa program by proposing numerous measures that will burden employers with additional costs, reduce employers’ ability to have a mobile workforce, and potentially expose employers to liability for violating state privacy and employment laws.

The H-1B visa is one of the most frequently used employment-based visa categories, and it permits foreign professionals to come to the United States temporarily to work. In order to file an H-1B petition, an employer must first file a Labor Condition Application (LCA) with DOL, in which it attests that the foreign worker will be paid at least the same wage rate as other employees in the same occupation with similar experience and qualifications, or the local prevailing wage for the occupation in the area of employment, whichever is higher. The employer also attests that employing the H-1B worker will not adversely affect the working conditions of workers similarly employed in the area of intended employment, along with other attestations. Employers must give notice of the LCA by posting it in the workplace and making it available in a Public Access File to anyone who requests to see it.

DOL has now proposed numerous changes to the LCA, the most significant of which is the requirement that employers disclose a tremendous amount of personal information about each of the workers (beneficiaries) under the LCA, information that was not previously required. This information includes the beneficiary’s name, date of birth, and salary, and information about pending permanent residency applications. Other important proposed changes include limiting employers to 10 beneficiaries per LCA and requiring more information about the worksites.

The proposed changes could have three significant ramifications. First, the changes could result in the release of personal information to the public because of the posting and public access requirements described above. Releasing such information could violate state laws and company policies regarding the disclosure of private employee data. Second, the changes could prevent employers from getting a jump-start on the H-1B filing process because employers often realize the need to fill positions months before they know precisely whom they want to hire. Finally, the changes will curtail employers’ ability to have a mobile workforce. Employers are currently permitted to include an unlimited number of employment slots on their LCAs to cover as-yet unidentified workers who may fill positions in the future.  Employers may also slot in new employees on LCAs to replace departing employees. If the proposed changes become effective, employers will lose the flexibility to quickly hire or replace workers and move employees to new worksites to meet business needs. These changes would impact employers for occupations that require mobility, from consultants to computer technicians to physical therapists.

DOL proposed the changes to weed out purported abuse of LCAs. But these concerns about abuse and fraud do not appear to be well founded. Statistics from the U.S. Citizenship and Immigration Services show that, of more than 14,000 H-1B cases randomly selected for investigation in FY 2010, only 485 (or 3.5 percent) were revoked and just 1 percent were referred for fraud investigation.  An earlier, smaller study came to similar conclusions. In a September 2008 USCIS study, which examined 246 H-1B cases for fraud and technical violations, fraud was found in just 33 cases, or 13.4 percent, with a 5 percent margin of error. Focusing on the prevailing wage, a key component of the LCA, the USCIS found fraud in only 9 cases, or 3.7 percent.  Looking at another key LCA component, the job occupation, the USCIS found fraud in 5 cases, or just 2 percent. These low statistics of fraud in LCAs do not justify DOL’s cumbersome new requirements.

The proposed changes come at a time when Congress is considering an immigration bill that was recently amended to markedly increase DOL’s investigatory and enforcement authority.  This past July, Senator Charles Grassley (R-IA), a longtime critic of the H-1B program and of business immigration generally, was successful in attaching tough new LCA enforcement provisions to a largely unrelated bill to eliminate individual country quotas on employment-based green cards, the Fairness for High-Skilled Immigrants Act (H.R. 3012). The LCA amendments would give DOL even greater power to investigate and audit H-1B employers. 

Many in the corporate community are troubled by these proposed administrative and legislative changes. Employers and practitioners have expressed concern about privacy and identity theft and the virtual elimination of flexibility in hiring and placing workers. DOL is accepting public comments on its proposed changes to the LCA form through September 7, 2012.  Congress continues to consider the Fairness for High-Skilled Immigrants Act and its amendments.

As obstacles to bringing in foreign talent increase, and as Senator Grassley continues his crusade against so-called fraud and abuse in the H-1B realm, we would be wise to remember the old adage: A rising tide lifts all boats. When employers can hire the most talented, educated and skilled employees from anywhere in the world, we all benefit. America cannot afford to lose skilled workers to other countries, and we do precisely this when we impede employers from hiring the best that the world has to offer. 

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.com. Linda Attreed, a law clerk, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.