On July 31, 2020, a Memorandum of Agreement (MOA) was signed by the Department of Homeland Security (DHS), acting through the United States Citizenship and Immigration Services (USCIS), and the Department of Labor (DOL). Under the MOA, the departments will provide access and share information about immigrant and nonimmigrant petition records and the data contained within the Office of Foreign Labor Certification and Labor Condition Application databases. This collaboration will be used by DOL to initiate Secretary-certified investigations.
Very recently, the USCIS revealed for the first time that there are more than 580,000 of non-immigrant H-1B workers in the United States. This MOA is aimed at protecting American workers, as it gives the DOL new power and ability to initiate investigations for potential fraud and abuse in the H-1B visa system.
H-1B Employer Violations
Specifically, the MOA emphasizes on the USCIS referring to the DOL any employer suspected of violations within the H-1B program. The USCIS regularly identifies suspected employers while adjudicating petitions, but the DOL has never before had access to this information from the USCIS. With this, the DOL will be able to conduct more administrative and targeted site visits.
Further, the MOA empowers the Secretary of the DOL to personally initiate investigations of potential violations, a unique authority under the Immigration and Nationality Act that allows for more robust examinations of employers’ use of H-1B workers than are ordinarily taken. This power was never previously vested in the Secretary of Labor. Also, this MOA is a step towards carrying out Presidential Proclamation 10052, signed on June 22, 2020, to ensure that American workers are not harmed by foreign labor.
DOL and USCIS Memorandum of Agreement
The MOA also sets out procedures for the exchange of data, as well as responsibilities regarding the use, retention, maintenance, dissemination, destruction, and safeguarding of data. The MOA, which is to be reviewed annually by both departments, supersedes and replaces the MOA dated January 12, 2017, and the corresponding 2019 addendum. This combined effort is expected to enhance the federal government’s ability to crack down on U.S. employers exploiting the H-1B temporary worker program and deter discrimination against an American labor force significantly impacted by COVID-19.
The DOL aims to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States. It intends to improve working conditions, advance opportunities for profitable employment, and assure work-related benefits and rights.