The H-1B Cap season is upon us, and we look forward to selections in the newly devised lottery at the end of March, followed by filing of selected cases in the April 1 – June 30 time frame. However, when the dust settles, what do employers do to assure compliance with increased scrutiny by the U.S. Department of Labor (DOL) and U.S. Citizenship Services (USCIS)?
In our latest alert, we offer a few points relating to the H-1B and other nonimmigrant visas to ensure that, given additional scrutiny, employers are complying in the event of USCIS site visits and Department of Labor audits.
For H-1B, E-3 and H1B1 workers, employers must conform to specific requirements relating to federal regulations including:
- Employers must offer working conditions to H1B employees on the same basis and comparable to similarly employed U.S. workers.
- Employees may not be placed at worksites where there are active strikes or lockouts in the same occupational classification as H1B workers and are mandated to notify the DOL when work stoppages occur.
- Employers must post job availability to workers on premises where U.S. workers are located who are similarly situated and performing similar duties.
- Pay for H1B workers must be the actual wage for the position, geographical location and occupation, which must be the highest wage paid to similarly situated U.S. workers.
- Working conditions for H1B foreign workers must be offered on the same basis and criteria as similarly situated U.S. workers.
- Employers should have on file a Public Access File (PAF) which includes the posting notification, memorandum regarding benefits offered, wage determination documentation from the Department of Labor and be ready, in the event of an audit, to present to the U.S. Department of Labor, if requested.
- The Public Access File should be stored separately apart from standard employee records.
- Third party site assignations USCIS has routinely frowned on third party site placement. Over the years, it has become increasingly difficult to comply with such requirements, although compliance can be sustained, the requirements are onerous.
- Remote work and work from home – Posting notices at home and electronic notification to employees can all be accomplished by diligent employers.
- Larger employers with a large workforce of H1B, H1B1 or E3 employees will develop formal and detailed compliance programs to ensure that in the event of audits or site visits, the documentation maintained onsite is detailed and accurate.
Material Changes in Conditions and Terms of Employment
If an employer plans to change terms and conditions of employment that might be considered ‘material’; that is, a new location, changes in job responsibilities, hours of employment, consideration of the filing of an amended petition or labor condition application must be contemplated to appropriately comply with USCIS requirements. Moves outside of the general Metropolitan Statistical Area (MSA) would necessitate the filing of an amended H-1B petition.
Significant changes in job duties, hours and responsibilities would also merit the filing of amended petition. To discern the mandatory requirements to file amendments would be a consideration of many factors and consulting with counsel. These regulations would affect the H-1B visa, E3 visa and H1B1 visa programs.
USCIS Site Visits
In September 2025, USCIS announced Project Firewall. The effort by USCIS and the DOL Wage and Hour Division for enforcement indicates that it is focused on safeguarding the rights, wage and job opportunities for U.S. workers. With additional congressional dollars allocated to immigration enforcement, we expect to see increased USDOL and USCIS audits of the H-1B program and other nonimmigrant visa categories. The E and L visa programs are also not immune from site visits and compliance requirements. Protecting America’s Highly Skilled Workforce with Project Firewall | U.S. Department of Labor.
Conclusion
From the minute an H-1B petition is initiated in the H-1B visa lottery, U.S. employers also undertake responsibility for federal compliance according to the labyrinthine U.S. visa programs. Navigating the visa requirements and complying with several government agencies’ rules and regulations requires diligence, attentiveness and individualized attention by Human Resources or in-house legal counsel.
FOR MORE INFORMATION:
A resource prepared by the firm on preparing for USCIS site visits can be found here - Effectively Preparing for USCIS Site Visits.
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