John Valdez’s Legal Blog

As I’ve mentioned in previous blogs, the trend in immigration law is an increased focus on enforcement of the rules.   The term “enforcement” in the immigration context usually conjures up visions of roundups of undocumented workers, but enforcement audits can seriously hurt the visa efforts of H-1B and PERM applicants who are trying to follow all immigration laws.

A case in point is the new audit being conducted by the Department of Labor in an investigation of the large immigration law firm, Fragomen, Del Rey, Bernsen & Loewy LLP (”Fragomen”).  Yesterday, the Department of Labor announced that it will audit all of that firm’s permanent labor certification filings (PERM applications).  Moreover, the announcement states that the audit will determine which applications “should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applications.”   

The Fragomen audit will surely cause many employers and possibly thousands of law abiding foreign nationals considerable stress as their applications are audited by the Department of Labor. 

It is not easy for foreign nationals and employers to understand the many rules on the immigration process, so they usually, and rightfully, rely on their immigration attorneys.  In this blog, I want to mention some of the rules that petitioners and beneficiaries should have some familiarity with concerning PERM and H-1B cases. 

One important area of compliance involves the regulations on Public Access Files.  The Department of Labor regulations  (see 20 C.F.R. section 655.760) on H-1B compliance rules require that employers maintain a “Public Access File” for each H-1B nonimmigrant employee.  This folder must be made available to any interested party, upon request, within one working day.  The Public Access File generally should contain the following:

• A copy of the certified labor condition application;
• Statement identifying the two required labor condition application posting locations and dates of posting or confirming notification to the applicable union; 
• Actual wage memorandum which clearly explains the system used to set the actual wage to be paid to the H-1B worker;
• Copies of the documentation used to establish the prevailing wage for the H-1B position;
• A summary of the benefits offered to U.S. workers in the same occupational classification as the H-1B worker and an explanation of any differentiation in offered benefits; and
• A statement confirming that the H-1B worker received a copy of the approved LCA.

PERM rules are very complex, and an in-depth discussion of them is well-beyond the scope of this blog, but I would like to point out some of them.  First, as the Fragomen audit illustrates, the Department of Labor is very aggressively seeking to protect U.S. workers from unlawful immigration practices.  Immigration lawyers not normally involved in a company’s general hiring practices are not supposed to interfere with that company’s hiring of U.S. workers for positions that involve labor certification applications.   In addition, the beneficiary of a labor certification application should not be involved in any way with the recruitment process. 

Strict compliance with the H-1B and PERM regulations can help a company avoid a Department of Labor audit and protect it in case there is an audit.  Smith & Garg Long Beach immigration attorneys pay special attention to these and all other immigration compliance rules.