The U.S. Department of Labor (DOL) has announced a new enforcement initiative called Project Firewall, focused on companies that employ H-1B workers. The program will bring more audits and investigations to check that employers are following all record keeping and wage-related requirements tied to H-1B sponsorship.
Employer requirements under the H-1B program
Before filing a H-1B petition, the sponsoring employer must file a Labor Condition Attestation (LCA) with the DOL, which establishes the job classification and the wage that must be paid to the foreign national. In addition, the employer must maintain a “public access file” and make the following materials available to the public within one working day of filing the LCA:
- The LCA;
- Rate of pay for the H-1B worker;
- Description or summary of the actual wage system;
- Prevailing wage rate and its source;
- Documentation that the notice requirement was satisfied;
- Summary of benefits offered to U.S. workers and H-1B workers;
- List of entities included as a “single employer”; and
- In the event of corporate change:
- Sworn or notarized statement by successor entity accepting all liabilities of predecessor entity;
- List of H-1B workers transferred to successor entity;
- Each affected LCA number and effective date;
- A description of successor entity’s actual wage system; and
- Successor entity’s employer identification number
Why Project Firewall matters
DOL audits of H-1B employers have been rare, but Project Firewall is expected to greatly expand enforcement. Investigations will look closely at wage compliance, file completeness, and whether postings were done correctly. Penalties for violations can include significant monetary fines and even loss of access to the H-1B program.
Now is a good time for H-1B employers to consider taking the following measures:
- Review all public access files to confirm they are complete and accurate.
- Verify LCA postings were completed at all required worksites (including remote locations) and retain proof of posting.
- Check that every H-1B employee is being paid the required prevailing wage.
- Monitor for changes in job duties or worksites that may require an amended petition.
- Retain documentation and records in case of a DOL audit.
