DHS, Labor Department to share information for H-1B audits, enforcement

The Department of Homeland Security and the Labor Department have announced a Memorandum of Agreement to exchange information and records regarding labor certifications and labor condition applications for purposes of conducting joint fraud investigations and enforcement.

Key points:

• Under the agreement, which has not been made public, the two agencies will share information about immigrant and nonimmigrant visa petitions as well as information in the Labor Department’s Office of Foreign Labor Certification’ labor certification and labor condition application database.
• The agreement creates a process for U.S. Citizenship and Immigration Services to refer cases to the Labor Department when USCIS suspects an employer of H-1B violations in the course of adjudicating petitions and while conducting administrative and targeted site visits. The direct sharing of this information has not occurred under past agreements.
• Additionally, the agreement allows the Labor Secretary to use the shared information to personally review and initiate an investigation of an employer for suspected H-1B violations—an authority that has never been utilized by any past Labor Secretaries.

Background: President Donald Trump’s June 22 work-visa ban ordered the agencies to enhance enforcement of the H-1B program and ensure that H-1B workers are not undercutting American workers.

BAL Analysis: The agreement signals the administration’s increased enforcement and scrutiny of employers’ use of immigrant and nonimmigrant visa categories during the COVID-19 economic recovery. Employers should ensure that all information on labor certifications, petitions and labor condition applications, including wages, hours and work location, is accurate and consistent with the terms of employment.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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