New DOL Policies for Confronting Fraud and Abuse in NIV Programs

 

Introduction

On June 6, 2017, the Department of Labor (DOL) released a statement titled “US Secretary of Labor Protects Americans, Directs Agencies to Aggressively Confront Visa Program Fraud and Abuse” [PDF version]. The news release outlines new steps taken by the Secretary of Labor, Alexander Acosta [see blog], to confront visa program fraud and abuse. The DOL statement follows similar statements of policy by the United States Citizenship and Immigration Services (USCIS) [see article] and the Department of Justice (DOJ) [see article] in April. In this post, we will examine the news release by the DOL on confronting visa program fraud and abuse. Please see our full article on President Donald Trump's “Buy American and Hire American” Executive Order [PDF version] in order to learn more about policy changes that we may see in the future on these issues [see article].

Buy American and Hire American

New DOL Policies for Confronting Fraud and Abuse

The news release explains that Secretary Acosta determined that it is now the policy of the DOL “to enforce vigorously all laws within its jurisdiction governing the administration and enforcement of non-immigrant visa programs…” The effect of this policy will include (paraphrased):

  • Directing the DOL's Wage and Hour Division to use all of its tools in conducting civil investigations to enforce labor protections provided for in the nonimmigrant visa programs (e.g., protections in the Labor Condition Application process in the H1B context).
  • Directing the DOL's Employment and Training Administration (ETA) to develop proposed changes to the Labor Condition Application.
  • Directing the DOL's ETA to review its investigatory forms in order to better identify systematic immigration program violations and potential fraud, and to increase transparency to stakeholders and the public.
  • Directing the Wage and Hour Division, the ETA, and the Office of the Solicitor to coordinate administration and enforcement activities of the nonimmigrant visa programs, and to make referrals of criminal fraud in the programs to the Office of the Inspector General.
  • Establishing a working group made up of the senior leadership of the Wage and Hour Division, the ETA, and the Office of the Solicitor to supervise the effort and coordinate enforcement in order to prevent duplication of efforts and maximize the efficiency of the DOL's activities regarding the nonimmigrant visa programs.

Furthermore, the DOL will continue to work with the Department of Homeland Security (DHS) and the DOJ in investigation in detecting nonimmigrant visa program fraud and abuse.

The statement explains that the DOL has already begun promoting the hiring of Americans and safeguarding working conditions in the United States. The DOL has taken steps to prioritize and publicize its investigations into visa program fraud and abuse. To this effect, the news release explains, the DOL obtained a preliminary injunction from a Federal Court against an H2A employer for illegal and life-threatening housing provided to H2A agricultural workers, the first time it has taken such an action. To read more examples, please see the following DOL report into some of the Office of Inspector General's (OIG's) recent successful investigations into fraud in the H1B program [PDF version].

Statement from Secretary Acosta

Secretary Acosta provided the following statement on the new DOL procedures:

“Entities who engage in visa program fraud and abuse are breaking our laws and are harming American workers, negatively affecting Americans' ability to provide for themselves and their families. We will enforce vigorously those laws, including heightened use of criminal referrals,” said Secretary Acosta. “The U.S. Department of Labor will focus on preventing visa program abuse and take every available legal action against those who abuse these programs.”

Conclusion

The DOL is joining the DOJ and the DHS in publicizing its efforts to combat fraud and abuse in our immigration programs. The DOL's role is most pronounced in certain nonimmigrant visa programs and in the labor certification [see category] context. The DOL is currently in the midst of crafting new policies and regulations in accord with President Trump's “Buy American and Hire American” Executive Order. We will update the website with more information as it is available.

It is important to note that none of the new policies change existing law relating to the labor certification process or the obligations of those who employ nonimmigrant workers and nonimmigrant workers themselves. Petitioners and beneficiaries will have the same obligations as they did before. Before petitioning for nonimmigrant workers, and during the petitioning process, it is advisable to consult with an experienced immigration attorney for expert, case-specific guidance. Questions regarding general rules and procedures should also be directed to an experienced attorney.