Employer Alert:  USCIS and Department of Labor Enter into Memorandum of Agreement 

The USCIS and Department of Labor (“DOL”) have announced that they have entered into a Memorandum of Agreement (“MOA”) where they will share access and information to the various immigrant and nonimmigrant records and data found within their respective systems.  Under this MOA, the Secretary of Labor has been encouraged to utilize a rarely used power to personally initiate investigations into matters raised by USCIS where it appears violations of US DOL regulations may have occurred.  This has the potential to create more vigorous and deeper investigations into H-1B employers.  This MOA follows from President Trump’s June 22, 2020, Executive Order and per the announcement by USCIS and DOL, it “will be central to the Department’s work carrying out the President’s policy of ensuring that the use of foreign labor does not harm American workers.” 

While DOL and USCIS have shared some information for several years, under this MOA, it seems that they have significantly stepped up their efforts to share information to identify those employers who may be abusing the immigration system.  Specifically, it appears that once a violator has been identified by one agency, they will immediately alert the other agency and share all of the relevant information that they have found regarding the matter or company.  On the DOL side, this information would allow the Secretary of Labor to initiate a robust investigation into the violator – this is a change from the normal DOL practice of beginning investigations based on employee or public complaints alleging violations of, for instance, H-1B wages under an LCA.

We should expect to see increased random site visits for H-1B workers as well as more targeted site visits based on what USCIS adjudicators find when analyzing a filing.  USCIS will be looking for employers who have not met the obligations of the Labor Condition Application (“LCA”) such as benching without pay, paying less than the LCA salary, employing someone outside of the LCA worksite address without having amended an H-1B, and payments by H-1B employees towards the H-1B process.   We are already seeing an increase in RFEs issued by USCIS examining extensions and amendments for these and related violations.  For example, USCIS will look to see if the state taxes are consistent with the H-1B worksite address found in that person’s most recent filing or if the amount stated on the previous LCA was consistent with the W2 amount found in the evidence of the more recent filing.    

To ensure that one is maintaining their H-1B, we have a few pointers regarding compliance: 

1. SALARY: Make sure that the salary being paid to the H-1B is the same or higher than the salary stated on the most recently filed H-1B petition for that individual.  An H-1B cannot be benched without pay and they cannot be furloughed.  If you intend to lower the H-1B employee’s salary, please reach out to our office first to ensure that you are complying with the regulations.  Increases in pay above the LCA salary are perfectly fine and you do not have to notify the USCIS or DOL for that.  Do note, however, that once an H-1B employee is granted a raise, that becomes their ‘actual wage’ for LCA enforcement purposes and later reductions in pay may require an H-1B amendment. 
2. WORKSITE: Make sure that the worksite where the H-1B employee works is consistent with the worksite found in the most recently filed H-1B petition for that individual.  There are some exceptions to this rule but if this changes from what was previously stated, please reach out to our office so we can analyze it for you.  In many situations, remote working from a residence which is within a reasonable commuting distance from the worksite listed in the petition complies with the regulations.    
3. JOB ROLE: If the H-1B employee’s role changes and it is considered a material change, an amended H-1B is required.  A promotion within the same vertical does not normally require an amendment (for instance, a promotion from Software Engineer to Sr. Software Engineer or Lead Software Engineer).   Where is promotion moves the employee into a different vertical, an amended H-1B is required such as a promotion from Software Engineer to Director of Software Engineering or Applications Manager.   In that latter example, the position changed from a technical role to a managerial role and moved it outside the software engineer vertical.  That is considered a material change and therefore requires an amended H-1B filing with USICS before it occurs.    

 The USCIS and DOL want to see an employer amend an H-1B if there is a material change to the terms of employment.  If you feel that there may be a change to your H-1B employee’s role, please reach out to our office as soon as you can so that we can provide strategy and information to prevent any unnecessary investigations under this new arrangement.  We would rather be the fence at the top of the cliff, than the ambulance at the bottom.