Following President Donald Trump’s administration’s promise to crack down on fraudulent misuse of the H-1B visa program, a number of federal agencies have kicked off joint efforts to re-interpret and re-enforce H-1B visa regulations. Already, a number of significant changes have been made to H-1B visa categorizations. Many employers of foreign workers will be affected by these changes and would be well advised to act as soon as possible to ensure they are in compliance with the new changes.

If your firm employs foreign workers under the H-1B visa program, contact an H1B audit and investigations attorney today so that you don’t get caught bending the rules, even if out of ignorance.

H-1B Visa Audits

The H-1B visa program was launched to help American companies hire foreign workers for jobs that require specialty skills. The law prescribes in detail the specialties that qualify for work visas as well as the application and record-keeping requirements for employing foreign workers.

Employers are required by law to maintain a labor condition application (LCA) for every foreign worker they employ, alongside all relevant documentation, at their official place of business. If requested by the United States Department of Labor (USDOL), the file of each foreign worker should be availed one working day after it was requested.

USDOL, in collaboration with other government agencies, regularly conducts audits on companies with foreign workers to determine whether they are in compliance with the law as regards employing foreign workers. During these audits, the agency will investigate whether a company:

  • Follows certain LCA notice requirements

  • Stores the LCA and supporting documentation of all foreign workers in its place of business

  • Hires foreign workers to perform specialty work

  • Pays the appropriate salaries to H-1B workers

  • Displaces American workers to hire foreign workers.

An H-1B audit is usually triggered by a tipoff by a current or former employee.

It is the burden of the employer to prove that the company complies with H-1b visa regulations.

If investigators find that the company has violated certain regulations, it will penalize the company, taking into consideration such factors as the company’s efforts to abide by regulations. If you have been penalized, an H-1B audit attorney can help you negotiate your penalties or dispute the findings at an administrative hearing.

Changes to H-1B Regulations

In March 2017, the US Citizenship and Immigration Services (USCIS) issued a memorandum rescinding on previous regulations allowing entry-level computer programmers to qualify for H-1B visas. The memorandum requires employers to prove computer programmer positions required a strong application of specialized knowledge before they are permitted to hire foreigners. In addition, the memorandum suggests one cannot have a high specialty position that pays a low-end salary.  

Another change in April 2017 committed the USCIS to a targeted approach work site visits all over the country. In its audits, the agency will target employers with a high ratio of foreign workers to American workers, employers who do not disclose business information in public records and employers who petition H-1B workers to work off-site.

There are several other regulatory changes taking place that affect