DHS Begins Auditing H-2B Employers

By Preston Huennekens on October 5, 2018

New Department of Homeland Security (DHS) audits aiming to curtail the abuse of H-2B visas have led to "widespread panic among employers and workers", according to a story from Law 360 (partially behind a paywall). Despite descriptions of the audits as "fair", these actions by DHS have led the chair of the American Immigration Lawyers Association to state that "everyone is afraid."

These audits are performed by the Fraud Detection and National Security directorate of U.S. Citizenship and Immigration Services (USCIS). FDNS assesses fraud, performs compliance reviews, and executes site visits to employers where fraud is suspected. Their website states that by "Supporting the USCIS mission, FDNS's objective is to enhance USCIS's effectiveness and efficiency in detecting and removing known and suspected fraud from the application process, thus promoting the efficient processing of legitimate applications and petitions."

The Law360 article makes clear that the use of FDNS in H-2B compliance investigations is a new move by DHS. Previously, FDNS mostly investigated issues regarding H-1B, L-1, or religious visas. Further, the Department of Labor (DOL) has handled H-2B compliance since 2009 through its Wage and Hour Division (WHD). DOL announced in September that it was going to begin "conducting a nationwide initiative to strengthen compliance with the labor provisions of the H-2B temporary visa in the landscaping industry." The sudden increase of audits and site visits by DHS and DOL has some employers panicking.

But why would employers who use H-2B visas fall into "widespread panic" and fear due to increased compliance review by FDNS or WHD? As long as they have not committed visa fraud and are paying their H-2B workers the prevailing wage in line with 2015 rules, a visit from FDNS should be uneventful, routine, and an accepted fact of hiring H-2B guestworkers.

Of course, evidence shows that more than a few employers violate the terms of acceptably using the H-2B visa. Despite the prevailing wage rule, H-2B workers are generally paid less for their work than their native counterparts. DOL has consistently published news releases of companies forced to surrender settlements to guestworkers whom they withheld pay from or abused. News outlets have reported on the efforts that companies make to deliberately avoid hiring Americans by relying on the H-2B visa. The AFL-CIO has consistently opposed the H-2B visa as a tool for replacing American workers with temporary foreign laborers.

There is no reason why DHS should not join DOL in investigating H-2B fraud. These kinds of investigations ensure that Americans are not losing opportunities to guestworkers. Regular audits also protect H-2B laborers from abuse by their employers. DHS and DOL should continue to work in concert to review the business practices of H-2B employers to ensure that they are following the law, and punish those who break it.