Project Firewall Puts H-1B Visa Employers at Whim of Government

Businesses that hire foreign nationals should be alarmed by the US Department of Labor’s enforcement initiative dubbed Project Firewall. This initiative is part of a broader effort to ensure that employers prioritize US workers and comply with H-1B regulations.

According to the Labor Department, Project Firewall aims to safeguard the rights, wages, and job opportunities of highly skilled American workers by ensuring employers prioritize qualified Americans when hiring workers and holding employers accountable if they abuse the H-1B visa process.

What’s alarming is that it allows the Labor secretary to “personally” certify investigations of “suspected” H-1B visa violations, which is a first for a department where investigations traditionally have been triggered by a complaint or other standard enforcement channels.

This historic action leverages existing authority and recent policy changes, granting the Labor secretary authority to personally certify an investigation if “reasonable” cause exists that an H-1B employer lacks compliance. This authority given to the Labor secretary to certify investigations could mean, under this administration, “the secretary’s authority to choose personally what employer to investigate” under Project Firewall.

The problem isn’t only the finding of violations—which, if they exist, may result in the collection of back wages owed to affected workers, the assessment of civil money penalties, and/or debarment from future use of the H-1B program for a prescribed period—but also that the discretionary nature of the investigatory process raises concerns about the potential for uneven or politically motivated enforcement.

Moreover, the Labor Department is directed to coordinate and share information with other federal agencies to combat discrimination and abuse within the H-1B program.

The regulations don’t explicitly constrain the Labor Department’s discretion in choosing which employers to investigate or the scope of those investigations, provided that “reasonable” cause exists.

But, under Project Firewall, the Labor secretary’s broad authority theoretically could be applied in a way that disproportionately targets certain employers or industries (such as those that heavily employ foreign nationals in the hospitality, construction, agricultural and IT industries), particularly if coupled with the random investigation provisions under the federal “inadmissible aliens” law, 8 U.S.C.A. §1182(n)(2)(F).

Concerns about the potential for uneven or politically motivated application of investigatory discretion given to Labor secretary in the form of certification under Project Firewall are valid when coupled with the broad authority granted to agencies under the Immigration and Nationality Act and its implementing regulations.

The INA explicitly authorizes the Labor Secretary to conduct investigations into H-1B employers under certain circumstances. It provides that the secretary “shall” investigate if there is “reasonable cause” to believe an employer has failed to meet a condition of its labor condition application. This authority isn’t limited to specific allegations but may extend to broader compliance issues uncovered during the investigation.

The legal framework governing investigations under the H-1B program provides mechanisms for oversight but also allows significant latitude in determining the scope and focus of investigations.

Further, consider the recently proposed bipartisan legislation, the H-1B and L-1 Visa Reform Act of 2025, which, if passed and signed into law, would significantly increase oversight and enforcement powers for federal agencies investigating not only H-1B, but also L-1 visa usage.

This expanded authority given to the Labor Department and US Department of Homeland Security under the act would substantially increase exposure for employers, even those who don’t primarily use H-1B and L-1 programs. It would allow unannounced audits and site visits by the Labor Department and Homeland Security for H-1B and L-1 employers.

For example, annual unannounced audits will be required for at least 1% of L-1 employers and automatically for employers with over 100 employees where more than 15% are H-1B or L-1 workers.

Under the act, the Labor Department and Homeland Security would have even broader investigative authority, including the power to issue subpoenas and conduct investigations without notifying an employer if necessary.

An employer could always seek relief through the courts, but it almost always requires them to submit to a protracted defensive process. The length and the costs of a defensive process an employer may be subjected to if seen as not “playing ball” with the present administration and complying with the administration’s political aims indeed can be grievous.

Larger companies may handle the costs and effort more easily, while smaller companies might find it much harder, which could result in reputation and economic ruin. Employers can pre-empt to a certain extent by planning beforehand, consulting counsel both in the employment and immigration areas, and conducting internal compliance audits of all affected records.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Hector Chichoni is a partner in the immigration and naturalization practice group at Greenspoon Marder in Miami.

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