Bloomberg Law
Nov. 17, 2020, 7:01 PM

Temporary Visa Programs Still at Risk for Fraud: DOL Watchdog

Genevieve Douglas
Genevieve Douglas

Employers taking part in the U.S. Labor Department’s Foreign Labor Certification programs continue to fall short of complying with terms of employment, leaving the programs vulnerable to fraud despite agency efforts to address the issues.

The DOL’s Office of Inspector General review released Tuesday revealed that the agency’s Wage and Hour Division has cited employers for not complying with the H-2B non-agricultural seasonal visa program requirements, such as paying workers less than the required wage rate; failing to notify federal agencies of early separation of visa workers; and assigning H-2B employees to work in areas outside the certified job location.

The OIG also found instances of fraudulent practices, including foreign recruiters who charged workers fees for the purchase of H-2B visas and transportation to the U.S., and companies falsifying documentation for nonexistent jobs with fake companies to obtain foreign worker visas.

The report’s findings of vulnerabilities and challenges in the H-2B program echo previously reported findings for H-1B specialty occupation visas and other temporary work visa programs. In October, the agency’s watchdog called for the DOL to ramp up its debarment efforts for “unscrupulous employers” by fully putting to use the agency’s investigation authority to determine bad actors.

Meanwhile, the H-2B visa program has been temporarily suspended by President Donald Trump’s June proclamation barring entry to the U.S. of certain visa holders through the end of the year in response to economic fallout from the coronavirus pandemic.

Employers of H-2B guest workers have pushed back against the administration’s actions, saying they still can’t find U.S. workers to do these jobs despite massive unemployment triggered by the pandemic.

Gaps in Agency Authority

The investigation reviewed filing, processing, and adjudication practices for the H-2B, H-1B, H-2A agricultural worker, and PERM labor certification for employment-based green card programs to identify and update vulnerabilities, which were last reported in a 2003 white paper.

“Since the OIG issued the white paper, subsequent OIG and GAO audits and investigations have confirmed many vulnerabilities still exist,” according to the report. “At the same time, new rules since 2003 have revamped the PERM, H-2A, and H-2B programs and addressed some of the vulnerabilities cited in these audits and investigations. However, these new rules also created challenges regarding DOL’s responsibilities.”

Specifically, the DOL’s Employment and Training Administration, which processes applications for visa labor certification, continues to have limited access to additional evidence from applicants that could better support efforts to identify fraud, the report found.

The subagency also hasn’t implemented a way to measure how effective its changes to policy have been to better protect U.S. workers, it said.

To contact the reporter on this story: Genevieve Douglas in Washington at

To contact the editors responsible for this story: Martha Mueller Neff at; Andrew Harris at