Preparing for Increased Audits and Site Visits Under the Trump Administration

(This article is part of our ongoing Immigration Compliance Series, designed to help employers navigate the complexities of maintaining compliance with U.S. immigration laws. Stay tuned by signing up for our newsletter, as we will publish future installments covering key compliance issues, best practices, and strategies for compliance.)

The H-1B visa program is a vital tool for U.S. companies to recruit highly-skilled talent. However, employers hiring foreign workers under the H-1B visa program must comply with a variety of federal regulations, ensuring that wages, job conditions, and work locations adhere to the terms outlined in their Labor Condition Application (LCA). With the Trump administration’s historically strict stance on immigration enforcement, there is a strong possibility of increased audits and site visits from both the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS). Companies sponsoring H-1B employees should take proactive steps to ensure compliance and be prepared for heightened scrutiny.

DOL Wage and Hour Division Audits

The Wage and Hour Division (WHD) of the DOL is responsible for enforcing wage and labor laws, including those governing H-1B workers. Employers must submit an LCA to the DOL, certifying that they will pay H-1B workers the required wage and comply with other labor conditions. Under 20 C.F.R. § 655.730(c), these employers must also maintain a Public Access File, which includes documentation supporting compliance with wage and working condition requirements.

Given the administration’s focus on protecting U.S. workers, enforcement of these LCA obligations is expected to increase. The DOL has broad authority to conduct audits, whether initiated by a worker’s complaint, credible sources, or random investigations targeting willful violators. During an audit, the WHD will review payroll records, timekeeping logs, job descriptions, and worksite locations to verify that H-1B employees are being compensated correctly and that their working conditions align with the representations made in the LCA.

Common Compliance Pitfalls and Consequences

Failure to comply with LCA requirements can lead to serious consequences, including fines, back wage payments, and even debarment from sponsoring future H-1B workers.

Common violations include:

Paying H-1B workers less than the required prevailing wage for their position and location.
Failing to maintain proper records, including timekeeping and payroll documentation.
Assigning H-1B employees to work locations not listed on the LCA.
Misrepresenting job duties or conditions in the LCA or petition.

Employers can face significant financial penalties for underpayment, including the requirement to compensate employees for lost wages. In cases of repeated or willful violations, companies may be barred from filing future visa petitions.

Best Practices to Ensure DOL Compliance

To reduce the risk of violations, employers should take the following steps:

Regularly review wages and payroll records to ensure that H-1B employees receive at least the actual wage on the LCA and that all payroll records accurately reflect compensation.
Keep detailed public access files and maintain all required documentation, including LCA approvals, wage determinations and surveys, and evidence of compliance.
Monitor job duties and locations by periodically confirming that H-1B workers are performing the duties outlined in their visa petition at the worksite(s) listed in the I-129 and LCA.
Prepare for audits by designating an internal compliance officer or HR representative to manage documentation and respond promptly to DOL requests.

USCIS Site Visits by FDNS Officers

Beyond DOL audits, H-1B employers should also be prepared for site visits conducted by the Fraud Detection and National Security (FDNS) Directorate of USCIS. FDNS site visits are intended to verify the legitimacy of an employer’s H-1B sponsorship and can occur at any time during the validity of the visa. These visits may be announced or unannounced and can take place at the company’s office, remote work locations, or even an employee’s home office in some cases. During a site visit, FDNS officers will assess:

Whether the bona fide job offer is legitimate.
If the H-1B worker is performing the job duties described in the visa petition.
Whether the H-1B worker is receiving the correct wages and benefits.

How to Prepare for USCIS Site Visits

Employers should take proactive measures to ensure they are prepared for site visits:

Maintain updated records and keep detailed and current records of job descriptions, worksite locations, salaries, and employment terms for all H-1B workers.
Designate a compliance contact by assigning a knowledgeable HR or legal team member to handle FDNS visits and communicate with officers.
Develop internal SOPs to handle visits as well as train and inform employees including H-1B workers and their managers about site visits, ensuring they understand their job responsibilities and visa conditions.
Verify employment practices to ensure that real-world employment conditions align with what was outlined in visa petitions and LCAs.

Staying Ahead of Compliance Risks

With the possibility of increased audits and site visits, H-1B employers must be proactive about compliance. Maintaining meticulous records, training employees, and ensuring adherence to visa requirements are crucial to avoiding penalties and disruptions. Companies that take these steps will be well-positioned to navigate the heightened scrutiny expected under the Trump administration.

At Global Immigration Partners, we specialize in helping employers navigate the complexities of H-1B compliance. Our experienced attorneys provide tailored guidance to ensure that your organization meets all regulatory requirements, minimizing the risk of violations. We assist with LCA compliance, Public Access File maintenance, site visit preparedness, and audit response strategies.

For tailored compliance strategies, employers should work closely with immigration counsel to ensure they are prepared for audits and site visits. Taking these precautions now can prevent costly violations and safeguard future visa sponsorship capabilities. If you have any questions about compliance or need assistance preparing for an audit, our team at Global Immigration Partners is here to help.

Quick links

Subscribe to the newsletter