WHD Releases Info on ‘Project Firewall’ Enforcement Initiative to Maximize Compliance with H-1B Visa Program

The Department of Labor’s Wage and Hour Division (WHD) recently released an announcement and a flyer on “Project Firewall,” a WHD “enforcement initiative to protect highly skilled U.S. workers and maximize compliance with the H-1B visa program.”

The announcement notes that WHD prioritizes investigations where employers may be displacing U.S. workers, failing to recruit U.S. workers in good faith, giving preference to H-1B workers when qualified U.S. workers are available, retaliating against workers who raise concerns about employers’ noncompliance, or misrepresenting job duties, requirements, or working conditions.

The flyer includes the following reminders about legal protections for U.S. workers under the H-1B program.

All H-1B employers:

• MUST provide notice of the Labor Condition Application to relevant U.S. workers on or before the date of filing.
• MUST NOT intimidate, threaten, restrain, coerce, blacklist, discharge, or discriminate in any other manner against a U.S. worker or applicant who has exercised whistleblower rights under the program.
• MUST NOT employ an H-1B worker at a worksite where a strike/lockout in their occupational classification is in progress.
• MUST NOT employ H-1B workers in such a way that the working conditions (e.g., hours, shifts, vacation periods, and seniority-based preferences) of its similarly employed U.S. workers are adversely affected.
• MUST NOT undercut U.S. worker wages by paying H-1B workers less than an applicable collectively bargained wage, a statistically derived prevailing wage, or the wage it pays to U.S. workers with the same job and with similar experience and qualifications.
• MUST NOT undercut U.S. worker benefits by offering H-1B workers fewer benefits than U.S. workers.

H-1B dependent employers and willful violators who employ nonexempt H-1B workers:

• MUST take good faith steps to recruit U.S. workers for the offered job.
• MUST offer the job to an equally or better-qualified U.S. worker before hiring an H-1B worker.
• MUST NOT lay off or displace the U.S. worker from a job that is essentially equivalent to the job for which the H-1B worker is sought.

This is posting is for informational purposes and is not intended as legal advice. If you require further assistance or advice relating to the above, please contact our Partner, Catherine Betancourt at catherine@flynnhodkinson.com.