Companies Move to Protect H1-B Fraud

September 30, 2021

IRLI shows why tough rule is needed

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a friend-of the-court brief in Washington, D.C., federal district court opposing an attempt by H1-B staffing companies to rid themselves of a Department of Homeland Security (DHS) rule that makes it harder to commit visa fraud. The companies have sued DHS alleging that the Department of Labor has sole enforcement authority, and the DHS rule is both unlawful and unnecessary.

As IRLI shows in its brief, however, rampant fraud occurs because the Department of Labor, by statute, lacks enforcement authority, and is required to approve applications for foreign labor as long as the forms are filled out correctly. In practice, this means that staffing companies get applications approved for any number of workers they wish, without even identifying any specific workers, and then are able to move foreign workers around the United States at will, without any oversight by authorities. They are also able to stockpile idle workers, without pay, in low-wage locations until they are needed in high-wage locations, where they are paid the lower wage of their previous location, thus undercutting American workers. The DHS rule the companies challenge, by requiring a new visa petition whenever a worker is transferred, prevents these abuses.

“It’s easy to see why businesses don’t like this rule; they want staffing companies to move foreign tech workers around the country so they can be paid less, even if this harms American workers,” said Dale L. Wilcox, executive director and general counsel of IRLI. “But fraud on the American worker is against the law, and the DHS rule being attacked here is clearly needed to stop it. We hope the court takes into account the information we have presented to it, and rules in favor of American workers and American wages.”