by The US Department of Labor (DOL) has announced a new enforcement model, Project Firewall, to monitor employer compliance with H-1B visa requirements. The announcement of the new enforcement effort was overshadowed in the general press by the announcement of a new $100,000 fee for filing an H-1B visa application. Unlike the increased application fee, Project Firewall is an enforcement initiative that impacts current H-1B visa holders and their employers. Project Firewall empowers the US Secretary of Labor to initiate investigations of employer activity based on “reasonable cause,” allowing the DOL to take action even without formal complaints from employees or third parties. This marks a significant shift from past practices, where investigations were typically reactive and driven by complaints.
Project Firewall means increased scrutiny of employer payroll, Labor Condition Applications (LCAs), and Public Access Files (PAFs). Violations can lead to back wage payments, substantial civil fines, and debarment from future H-1B petitions.
The quality of employer documentation will be the key to employer compliance under Project Firewall. To be ready for DOL audits, employers must maintain up-to-date documentation in several critical areas, including:
1. Public Access Files (PAFs)
- Signed and certified copies of LCAs.
- Prevailing wage documentation.
- Memo detailing the internal wage system.
- Evidence of benefits parity with U.S. workers.
- Proof of LCA posting.
2. Payroll and Wage Records
- Payroll registers, pay stubs, and W-2s.
- Documentation demonstrating compliance with prevailing wage requirements.
- Records for payment during nonproductive periods.
3. Immigration Filings and Case Documents
- Copies of I-129 petitions and supporting documents.
- Certified LCAs and any amendments.
- USCIS approval notices and responses to Requests for Evidence (RFEs).
- Prompt amendment of LCAs if changes occur in the worksite or job duties.
4. Worksite Compliance Records
- Worksite addresses and project assignments.
- Client confirmation letters for third-party placements.
- Posting notices for all worksites.
5. Employee Rosters and HR Records
- Updated roster of H-1B employees (job titles, start dates, worksites).
- Offer letters and employment agreements.
- Documentation of benefits provided.
6. I-9 and E-Verify Documentation
- Completed Form I-9 for all employees.
- Supporting ID copies.
- E-Verify records if applicable.
7. Corporate Records and Policies
- Organizational charts illustrating wage leveling.
- HR policies on wages and nondiscrimination.
- Evidence against displacing U.S. workers.
Employers are encouraged to conduct regular internal audits of their documentation to ensure that they are ready to promptly and effectively respond to DOL audit requests.
