A number of technology companies rely heavily on foreign workers — and the H-1B program — to fill positions requiring specialized, highly trained employees. However, a recent executive order asking for an overhaul of the H-1B program is beginning to take effect, and it could become increasingly difficult for tech companies to easily and affordably obtain a skilled workforce. Moreover, companies may also face increased risks of audits for not properly adhering to both existing and new program regulations.
As I discussed previously, President Trump issued an executive order in April that, in part, asked several government agencies, including the Department of Labor and the Department of Homeland Security, to propose reforms to the current H-1B program, which grants visas to skilled foreign workers.
Following the executive order, the Department of Homeland Security immediately responded that it would increase its efforts to detect fraud in the H-1B program. And in June, the Department of Labor publicly announced that it too will be increasing its efforts to detect fraud in foreign visa programs, including H-2A and H-2B in addition to H-1B. While some of these efforts will include proposing changes to the H-1B program, as President Trump requested in his executive order, other efforts will include more civil and criminal investigations and criminal referrals for companies using the programs in their current states.
Though the Department of Labor’s scope of investigation is limited due to laws that restrict the department’s authority, senior officials have suggested asking Congress to revisit the laws. And even with the Department of Labor’s limited scope, it still has the power to conduct an audit at any time, especially when there are specific reasons to do so, as could be the case for companies relying heavily on the H-2A, H-2B or H-1B programs for staffing.
To avoid facing an audit, your company should fully understand worker visa regulations and ensure that your foreign workers meet the program’s requirements at all times. It may also be wise to periodically conduct self-audits to ensure there are no areas of concern.
Should your company face an audit, expect little to no advance notice. For this reason, it’s wise to maintain up-to-date records of all employees working on a foreign visa. Your company can ask the auditor what the investigation regards and the time period they’re investigating. You should appoint someone — such as a senior-level employee or legal counsel — to work with the auditor, gather necessary documents and organize employee interviews.
Every individual who comes in contact with the auditor, especially the main point of contact, should be amenable and cooperate. At the end of the audit, you should ask for a summary of the investigation and obtain legal counsel if any violations were found since they can result in steep fines or other legal action.
If you are facing an audit, or have questions about your current use of worker visa programs, please give me a call.
Brad Hendrick heads the immigration law section at Caplan and Earnest LLC. He may be reached at [email protected] or 303-443-8010.