United States: DOL Intensifies Enforcement of H-1B Wage Rules

The Project Firewall initiative signals that DOL investigations of employer H-1B compliance are likely to become more proactive, rigorous, and documentation-focused. For example, DOL may shift away from its practice of viewing minor irregularities in an employee’s Labor Condition Application (LCA) Public Access File as technical violations and instead treat them as substantive failures.

The frequency and level of penalties are also likely to escalate, up to and including the most severe penalty of debarment from the H-1B program for serious or willful violations. Finally, Project Firewall increases the risk of cross-agency enforcement, with potential involvement of U.S. Citizenship and Immigration Services, Equal Employment Opportunity Commission, and/or the Department of Justice, if DOL believes there is reason to trigger broader investigations into a company’s potential violation of immigration, employment, or criminal law.

There are several steps that employers can take now to confirm that they are in compliance with H-1B wage and documentation rules:

• Audit Public Access Files (PAFs) for every LCA. Verify that all required documents are complete and accurate.
• Verify payroll and wage compliance on a pay-period basis, ensuring that H-1B worker pay is consistent with their corresponding LCA.
• Standardize classification practices. Ensure that job titles, SOC codes, and wage levels are consistent across filings and job duties.
• Ensure LCA notice postings are correctly posted at each worksite, with records preserved.
• Tighten vendor oversight and contract controls if using third-party placement or vendor chains. Companies should ensure that the vendor meets the company’s standards and legal requirements.
• Train Human Resource, legal, and management teams on H-1B documentation obligations, escalation of compliance issues, and how to respond to government investigations.
• Develop response protocols for an audit or investigation. Designate a compliance lead, prepare communication plans, and organize documentation in anticipation of possible DOL review.

Fragomen is monitoring implementation of the Project Firewall initiative and will provide updates as appropriate. If your company has questions or is seeking an internal review of your company’s documentation practices, please contact your Fragomen counsel or the firm’s Government Strategies and Compliance Group.