DOL Escalates Campaign Against Employers over Foreign Talent

The Department of Labor has significantly escalated enforcement actions against employers for use of foreign talent.

Why it matters: The enforcement uptick is part of the administration’s overall campaign against immigration, including employer-sponsored immigration. Employers with high use of foreign talent should be on notice that they may be targeted for investigation.

Uptick in investigations: According to Bloomberg, the DOL has increased its caseload of H-1B investigations by nearly 50%. The new activity is part of the Department’s new Project Firewall enforcement initiative, which aims to “prioritize qualified Americans when hiring workers.” The new investigations include threats of fines and debarment for violations.

Under the microscope: While DOL immigration investigations have historically been the product of employee complaints and focused on clearly illegal behavior, the new enforcement initiative looks for any “hyper-technical violation,” putting employers in a “compliance minefield.”

• Investigators are also prioritizing cases where employers may be failing to recruit U.S. workers in good faith.

• Employers are experiencing more frequent site visits from both the DOL and DHS, including in some cases every time an employer files a new H-1B petition.

The bottom line: This administration is likely to treat use of foreign talent with suspicion by default. Employers should audit their use of employer-sponsored visas to ensure they are in full compliance with the law and have clear evidence ready for investigators of no-preference hiring.