Getting Gratifyingly Hard-Nosed About H-1B Compliance Enforcement


One of the most encouraging developments related to the ongoing fraud and abuse afflicting the H-1B visa program is the boots-on-the ground approach being taken by the administration to solve the problems. Word is getting around that the feds are stepping up site visits to enforce compliance with H-1B rules and regulations, and there's finally some urgency for employers to get their acts together.


The January/February 2010 issue of Business Law Today, a publication of the American Bar Association, is reporting that employers can expect much more intensive scrutiny of their H-1B compliance:

The administration has pledged to aggressively investigate employers and pursue criminal enforcement wherever possible. While criminal enforcement against employers who hire unauthorized workers began under the Bush administration, recently criminal enforcement actions also have been brought in the H-1B context for egregious violations. The Obama administration has stated that, even more so than the prior administration, the focus will be on employer compliance with immigration rules.

The article went on to stress that the effort has some big guns behind it:

Employers can expect to see increased enforcement in this area by an energized and invigorated [Department of Labor] under the Obama administration. Indeed, it was recently reported that 250 new investigators are being hired by the DOL - additional hiring that will increase the staff in the division by more than a third. President Obama's new labor secretary, Hilda Solis, has asserted that she will aggressively pursue violations, stating, "There is a new sheriff in town."

This stepped-up enforcement seems to be getting a lot of attention in the legal community; my sense is that it's generally accepted within that community that employer compliance with H-1B regulations has been lax, at best. What's troubling is that I haven't seen any real indication that legal types are all that bothered by the laxity.


In the November 2009 issue of Workforce Management (free registration required), immigration attorneys Maggie Murphy and Delisa Futch provided employers with step-by-step guidelines on how to handle the feds if they come knocking. I might have been reading too much into it, but it was almost as if the people whose job it is to fix the compliance problems are being cast as the bad guys. Here's an excerpt to show you what I mean:

Based on reports from numerous employers of all sizes, Citizenship and Immigration Services has launched a full-scale operation designed to investigate H-1B employers. The operation involves scrutiny of all information provided with an H-1B filing. Although Citizenship and Immigration Services is not specifically authorized by regulation to enter the workplace and "investigate" H-1B employers, refusal to cooperate may trigger a larger-scale investigation if the agency alerts ICE or the Department of Labor to possible fraud allegations. Such investigations could lead DOL to scrutinize future petitions more heavily or even revoke them, thus revoking non-immigrant status and work authorization. In most of the site-visit cases reported in July and August 2009, the investigators appeared with little or no notice to the employer. Decide in advance who the "first responders" will be and who will address any government visitors. The investigators will normally enter the work site through the main entrance, so whoever comes in contact with the public initially should be instructed to notify the first responder immediately and should refrain from discussing any company or employee information with the investigator.

Clearly, people who hire employees on H-1B visas are entitled to good legal advice, and the fact that these attorneys are providing this information is a good thing. But again, I just can't help but get the sense that there's a "circle the wagons" mentality at play here that doesn't give proper attention to the scourge of H-1B abuse. It's almost as if the legal mind set is that non-compliance isn't so much the problem as being caught in non-compliance is.


I had an e-mail exchange on this topic earlier this week with Annika Hylmo, an organizational strategy consultant and founder of The Insight Generation in Los Angeles. She noted that non-compliance isn't necessarily intentional, and the site visits are likely to strain the resources of smaller companies that are already having a tough go of it in today's economy:

Most large corporations wouldn't dream of not being compliant, and have extended use of legal resources to ensure that they are. So I'm assuming that if there is a problem, it would fall to smaller and midsized companies with fewer resources in that area. A small company is less likely to have an on-staff labor attorney, for example.


What I do think is that with increased checks there may be a feeling of [being overwhelmed], as in, "We're really busy and now there is one more thing that we have to deal with," and perhaps an overstated need to be cautious. The threat, if you will, is likely to be people feeling like there is more thing on their plate to deal with than before (this may be just a perception), wanting to do a good job, and feeling stressed about it all. Companies that have been dealing with a lot of change in the last year or so may be more prone to this.

In any case, the administration is to be applauded for taking a more aggressive approach to H-1B compliance enforcement. Any company that's found to be non-compliant should be held fully accountable, and should suffer consequences that would prevent a recurrence. There are too many good people out of work, and too many good H-1B visa holders whose livelihoods are tied to the legitimacy of the program, for this problem not to be given the serious attention it warrants.