Immigration Update: Project Firewall

By: Kenneth Nilsson and Rachael Jeanfreau

Recently, the U.S. Department of Labor launched “Project Firewall”, an initiative enforced by the Department’s Wage and Hour Division which aims to “safeguard the rights, wages, and job opportunities of highly skilled U.S. workers and maximize compliance with the H-1B visa program.” The H-1B visa program, which employers use to hire highly skilled foreign national workers for “specialty occupations” that require a bachelor’s degree or higher, has come under increased scrutiny by the Federal Government. Project Firewall is one of several recent changes to the H-1B program which have made obtaining H-1B visas more difficult and expensive for employers.

Notably, Project Firewall provides for increased oversight by the DOL over H-1B investigations into employers suspected by the Agency of some wrongdoing. To reduce the risk of an investigation or claim/charge/lawsuit, employers should take several steps, including:

• Ensuring that the employer’s description of a position’s job duties, minimum qualification requirements, and other material terms are complete and accurate;
• Employers who are “H-1B dependent” must make a genuine, good-faith effort to recruit from an appropriate pool of qualified U.S. workers; and
• Employers must pay H-1B visa holders the required wage, which is either the prevailing wage for the job position (which is location dependent) or the actual wage paid to U.S. employees who perform similar job functions.

Crucially, employers found to have violated Project Firewall may have to pay back wages to impacted employees and civil monetary penalties, and they could face debarment from further participation in the H-1B program.

Project Firewall also provides for more interdepartmental collaboration between the DOL and other Federal agencies, including the Department of Justice (Civil Rights Division), the Equal Employment Opportunity Commission (EEOC), United States Citizenship and Immigration Services (USCIS), and other law enforcement agencies.

Now, more than ever, it is important for employers to review and self-audit their H-1B visa program to ensure compliance with H-1B rules. Employers should seek guidance from counsel to help navigate the legal complexities of the H-1B program, including wage obligations, labor condition applications, and other H-1B employment-related issues.