USA, Washington, D.C. November 07, 2018

Media reports indicate an increase in unannounced government site visits and audits of employers regarding their use of the H-2B visa program. Some employers have reported surprise visits by the U.S. Citizenship and Immigration Services' Fraud Detection and National Security unit (FDNS), while others have been visited by the Department of Labor's Wage and Hour Division (WHD).

A U.S. Citizenship and Immigration Services spokespersons has confirmed that "pursuant to the Buy American and Hire American Executive Order, FDNS enhanced its ability to identify, investigate, and deter fraud and misuse in the employment-based nonimmigrant visa classifications in order to protect American workers."

This follows a Department of Labor statement in September, which said that the Department would be "conducting a nationwide initiative to strengthen compliance with the labor provisions of the H-2B temporary visa program" in the hotel and landscaping industries. Two months earlier, in July 2018, the U.S. Department of Justice also announced a formalized partnership with the Department of Labor, establishing information sharing procedures between the two agencies to expand site visit programs and efforts to combat H-2B visa program fraud and abuse.

Recent audits have included more detailed and arduous government requests for information related to employers' use of the H-2B program than previously seen. Employers using what under previous administrations had been "routine" visa programs, like the H-2B, must not only be prepared for government audits, but even more proactively, must understand up front the legal obligations that attach to the use of visa programs, by consulting with qualified immigration counsel and not relying just on outside staffing vendors. Proactive employers can thus conduct their use of visa sponsorships in such a way that is consistent with the legal representations made in their petition filings.

Unfortunately, many employers do not fully understand their legal obligations under the H-2B program and rely on non-lawyer staffing agencies to prepare and file their H-2B applications for hourly workers. These practices may leave employers unprepared for an investigation of their H-2B Programs and vulnerable to liability for non-compliance.

Please contact O'Brien Law LLC if you should have any questions or would like to request additional information related to H-2B compliance.