The Office of Inspector General (OIG) issued a report titled “USCIS Needs a Better Approach to Verify H-1B Visa Participants.” The report was published on Oct. 20, 2017, where OIG made the following findings, after which it gave four recommendations to USCIS:
Continue Reading Office of Inspector General Issues Report on H-1B Site Visits
On Sept. 19, 2025, the U.S. Department of Labor (DOL) announced Project Firewall, a new enforcement initiative focused on compliance with employers’ obligations under H-1B visa program with respect to hiring and retention, wage and hour, and other employment practices. Project Firewall’s stated goal is “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.” The initiative calls for enhanced agency investigations and a wide range of enforcement practices including payments of back wages, civil fines, and disbarment from the H-1B program.
DOL announcement provides little practical detail on the nature and scope of investigations; however, past DOL and USCIS practices may provide some insight into what employers might be facing as part of Project Firewall:
Project Firewall represents a fundamental increase in the level of H-1B enforcement. Employers should expect investigations and consider acting now to strengthen compliance programs and mitigate legal exposure.
The shift toward remote and hybrid work arrangements has created compliance challenges for U.S. employers sponsoring foreign workers under H-1B, E-3, and H-1B1 classifications. While remote work offers flexibility and expanded talent pools, it introduces complex legal obligations that, if overlooked, may result in substantial penalties and backpay awards, as well as possibly jeopardizing employees’ immigration status.
Under U.S. Department of Labor (DOL) regulations, every location where an H-1B, E-3, or H-1B1 employee performs work must be listed on a Labor Condition Application (LCA) and covered by the underlying petition. This includes the employee’s home office when working remotely.
When an employee works from home, their residence becomes a “worksite” for immigration and labor law purposes. This means:
A compliance gap may emerge if employees relocate during their H-1B validity period without informing their employer’s immigration team. This seemingly minor oversight may create cascading compliance complications.
If an employee relocates within the same MSA as originally listed on their LCA:
Required Action: The employer must post a notice in two conspicuous places at the employee’s new residence, where they work remotely, for 10 business days and update the respective Public Access File.
Common Failure: HR teams update payroll records and internal systems but fail to notify immigration counsel, resulting in a lack of required postings at the new location and outdated, deficient Public Access File documentation.
Consequences:
If an employee relocates outside the MSA covered by their current LCA:
Required Action: File an amended H-1B petition with a new LCA covering the new geographic area before the employee begins work at the new location.
Common Failure: Employees relocate and continue working without the employer’s knowledge, creating an immediate status violation.
Consequences:
The DOL’s enforcement focus on prevailing wage compliance makes unreported address changes particularly precarious. Key risks include:
Consider the following real-world scenario that illustrates the consequences of inadequate address change procedures:
The Situation: Sarah, a software engineer in H-1B status, was initially hired to work in Dallas, Texas, with a Level 4 prevailing wage determination of $156,998 annually. Her employer’s remote work policy allowed employees to work from home, and her LCA properly listed her Dallas residence as a worksite.
The Move: One year into her three-year H-1B validity period, Sarah relocated to San Francisco to be closer to family. She promptly informed HR and payroll of her address change, and her W-2 forms began reflecting California state taxes. However, the payroll team failed to notify the company’s immigration team about the relocation.
The Compliance Failure: Sarah’s move from Dallas to San Francisco represented a change to a different MSA with a substantially higher prevailing wage, approximately $213,512 for a Level 4 software engineer position in the San Francisco area, an annual difference of $56,514. Under DOL regulations, this required:
None of these steps were taken because the company’s immigration team was unaware of the move.
The Discovery: Two years later, when Sarah’s employer filed her H-1B extension petition, U.S. Citizenship and Immigration Services (USCIS) issued a Request for Evidence (RFE). USCIS had cross-referenced Sarah’s petition against her California state tax records and identified the discrepancy between her approved work location (Dallas) and her actual work location (San Francisco).
The Consequences: The RFE created multiple serious problems:
The Resolution Costs: To address the violation, the employer had to:
This case demonstrates how a simple communication breakdown can escalate into a six-figure compliance problem with lasting immigration consequences.
The increasing sophistication of government enforcement mechanisms means that address change violations are more likely to be detected than ever before. Employers should be aware of the following discovery methods:
The FDNS unit conducts unannounced site visits to verify petition information. During these visits, inspecting officers may discover that employees have relocated to new addresses without proper LCA amendments or H-1B petition updates. FDNS officers are specifically trained to identify compliance gaps and will document any discrepancies between approved work locations and actual employee residences.
As demonstrated in the software engineer case study above, USCIS increasingly cross-references employee state tax filings against residential addresses on record during the adjudication of new H-1B filings, including amendments and extensions. This data matching has become more sophisticated and systematic, making it more likely that geographic discrepancies will be identified during routine petition processing.
USCIS is issuing RFEs requiring H-1B employees to complete biometrics appointments across multiple petition types, but mostly on H-1B petitions and I-140 immigrant petitions, even though these cases do not typically require biometric collection. During these appointments, USCIS captures current address information and cross-references it against the approved petition locations. This enforcement mechanism allows USCIS to identify address changes that were never reported to immigration authorities, creating an additional layer of compliance verification that employers may not be unprepared for.
The expansion of biometric RFEs to I-140 immigrant petitions demonstrates that USCIS is using address verification as a compliance tool across the entire immigration continuum. Employees who may have had compliant H-1B petitions initially but developed violations during the validity period may find their permanent residence applications jeopardized when USCIS discovers unreported address changes during I-140 adjudication.
During Form I-9 compliance audits, Immigration and Customs Enforcement (ICE) may identify H-1B deficiencies when reviewing employee documentation. While this discovery method is currently less common, employers should anticipate increased scrutiny as compliance enforcement becomes stricter and more integrated across agencies. ICE auditors are trained to spot immigration status violations that may not be immediately apparent from I-9 documentation alone.
H-1B employees who become aware of prevailing wage requirements may file complaints when they realize they are being underpaid due to their employer’s failure to update LCAs for new work locations. These complaints may trigger DOL wage and hour investigations and result in significant penalties. Educated employees increasingly understand their rights and may seek legal counsel when they suspect wage violations.
During consular visa interviews for visa renewals or family member applications, consular officers may identify discrepancies between an employee’s stated residential address and the work location listed on their H-1B petition. While currently uncommon, this discovery method may become more frequent as consular officers receive enhanced training on H-1B compliance issues and as information sharing between agencies improves.
Another discovery method involves H-1B change of employer petitions (portability cases). When an employee transfers to a new employer, USCIS may identify prior compliance violations during the adjudication process by cross-referencing the employee’s state tax filings against the previous employer’s H-1B petition.
The Problem for New Employers: This situation creates an impossible burden for new employers because they typically do not have access to the prior employer’s complete H-1B petition file. The new employer cannot reasonably identify potential compliance issues before filing their change of employer petition, yet they may face petition denials or RFEs based on the prior employer’s failures.
Heightened Risk During Grace Periods: This issue is particularly acute for employees in the 60-day grace period following termination. USCIS has significantly increased its use of Notices to Appear (NTAs) for individuals found to be no longer maintaining legal status. When a compliance violation from a prior employer is discovered during a change of employer petition, it may trigger NTA issuance even if:
Practical Implications:
Risk to Prior Employers: The compliance violations don’t disappear when an employee changes employers. Former employers remain exposed to liability when H-1B deficiencies are discovered during change of employer adjudications. Once a former employee learns that their previous H-1B petition was deficient due to an unreported address change with a higher prevailing wage, they may pursue backpay claims against their former employer. These claims can extend back several years and involve substantial amounts, particularly when the wage differential between geographic areas is significant. The former employer cannot cure the violation since the employee has already departed, leaving them fully exposed to the financial consequences of their compliance failure.
Current or former employees, competitors, or other third parties may report suspected violations to DOL or USCIS. The anonymous nature of many reporting mechanisms makes this an ongoing risk for noncompliant employers.
The key takeaway is that these violations are no longer hidden in administrative silos. Government agencies are increasingly sharing information and using sophisticated data matching techniques that make discovery more likely and more systematic than in the past.
While geographic-based prevailing wage violations represent a significant compliance risk, employers face additional exposure from incorrectly classifying the job classification and the wage level for H-1B positions. This issue, compounded with the address change problem, may create further liability.
The prevailing wage system classifies positions into four levels based on experience, education, and job complexity:
Many employers face two distinct types of classification errors that may result in significant compliance violations:
Employers may under-classify positions to reduce labor costs, selecting Level 1 or Level 2 wages when the position actually requires Level 3 or Level 4 compensation.
Beyond wage levels, employers often select incorrect job classifications entirely. The duties and responsibilities of different positions carry substantially different prevailing wages, even within similar fields. For example:
Bachelor’s Degree Requirement Violations: The H-1B category fundamentally requires that the proposed U.S. assignment necessitate at least a bachelor’s-level education. Selecting job classifications that require only an associate’s degree creates an immediate compliance concern. For example, selecting “Computer Network Support Specialists” for an employee performing bachelor’s-level work, even though DOL data indicates the position requires an associate’s degree, may result in:
These job classification errors may create several compounding problems.
Compounding Geographic Issues: When an employee moves to a higher-wage area and the employer has made both wage level and job classification errors, the underpayment exposure multiplies. An employee initially classified as a Level 1 “Computer Network Support Specialist” in Dallas who should have been a Level 4 “Software Engineer,” then moves to San Francisco, faces a triple violation (geographic change, incorrect wage level, and incorrect job classification) potentially creating enormous backpay liability.
Audit Vulnerability: DOL audits specifically examine whether both the job classification and wage level selection match the actual job requirements. Auditors review:
Systematic Violations: Unlike address changes that affect individual employees, both job classification and wage level misclassification often reflect company-wide practices, potentially affecting multiple H-1B employees simultaneously and creating backpay exposure across entire departments or job categories.
Wage level violations carry the same penalty structure as geographic wage violations under 20 CFR 655.810 (2025 penalty amounts as adjusted by Federal Register, Vol. 90, No. 8, Jan. 10, 2025):
When combined with multi-year underpayments across multiple employees, these penalties can reach seven figures for employers with systematic misclassification practices.
For employers with systemic, widespread violations, the DOL can impose the most severe penalty available: debarment from the H-1B program under INA § 212(n)(2). This sanction prohibits an employer from filing any H-1B petitions for up to three years.
Debarment Requirements: Under DOL Fact Sheet #62S, debarment requires formal enforcement proceedings with specific findings:
Additional Consequences:
Business Impact: For technology companies, consulting firms, health care organizations, and other employers that rely heavily on H-1B workers, debarment can be business-threatening. The consequences include:
No Workarounds: Unlike monetary penalties that can be paid, debarment cannot be cured through compliance efforts during the prohibition period. Employers facing debarment must demonstrate extraordinary circumstances to avoid or reduce the sanction period.
Inadequate documentation makes it difficult to defend wage level selections during audits and increases the likelihood of violations being classified as “willful” rather than technical.
Employers should consider taking the following steps to help address potential compliance gaps:
The intersection of remote work flexibility and immigration compliance creates challenges for U.S. employers. While remote work offers benefits, it also comes with legal obligations. Employers who proactively address these compliance requirements may avoid costly penalties while maintaining the flexibility that makes them competitive in today’s talent market.
A strategy for maintaining compliance is treating address changes as immigration events requiring immediate attention, not merely administrative updates. By implementing robust monitoring and reporting systems, employers may be able to harness the benefits of remote work while complying with their immigration and labor law obligations.
This article provides general guidance on immigration compliance matters. Employers should consult with experienced immigration counsel to address specific situations and ensure compliance with current regulations.
On Oct. 23, 2023, the Department of Homeland Security (DHS) announced the Notice of Proposed Rulemaking (NPRM) to amend H-1B regulations. The purpose of the NPRM is threefold: 1) to modernize and improve the efficiency of the H-1B program; 2) to provide greater benefits and flexibilities; and 3) to improve integrity measures. This proposed regulation is open for public comment until Dec. 22, 2023. Comments can be submitted through the Federal eRulemaking Portal, referencing DHS Docket No. USCIS-2023-0005.
The proposed rule will not take effect until the comment period ends and DHS publishes a final regulation. It is not clear if new provisions will be implemented in time for the upcoming cap registration season in March 2024.
This blog post summarizes the proposal’s key points.
DHS intends to streamline requirements for the H-1B program with the following proposals:
Revisions to the definition of ‘Specialty Occupation.’ U.S. Citizenship and Immigration Services (USCIS) seeks to revise the regulatory definition and standards for a “specialty occupation” by clarifying the following:
Amend the Criteria for Specialty Occupation Positions. USCIS seeks to revise the criteria for specialty occupations by clarifying the following in the NPRM:
Amended Petitions. Currently, an H-1B amendment is required when there is a material change in the terms of the H-1B employment, including a change in job duties, change in the worksite location outside the geographic area of employment, change in hours, or other changes that impact the conditions outlined in the underlying approved H-1B petition. The proposed rule seeks to clarify when an amended petition must be filed if there is a change in the worksite location. It also seeks to clarify when an amended or new petition is required for short-term placement of H-1B workers. The NPRM proposes the following:
Deference. The proposed rule seeks to codify existing deference policy where adjudicators generally should defer to a prior determination involving the same parties and underlying facts if there is no material change. Codifying the deference policy is designed to better ensure consistent adjudications.
Maintenance of Status. According to the proposed rule, evidence of maintenance of status must be included with the initial filing of petitions that request to extend or amend the beneficiary’s stay. The NPRM also clarifies:
Eliminating the Itinerary Requirement for H Programs. The proposed regulation seeks to eliminate the itinerary requirement for H-1B and H-2 petitions, as the information provided in an itinerary is largely duplicative of information already provided in the Labor Condition Application (LCA).
Validity Expires Before Adjudication. DHS proposes to allow H-1B petitions to be approved or have their requested validity period dates extended if USCIS adjudicates and deems the petition approvable after the initially requested validity period end-date, or the period for which eligibility has been established, has passed. This generally would occur if USCIS deemed the petition approvable upon a favorable motion to reopen, motion to reconsider, or appeal.
DHS proposes to modernize the definition of employers who are exempt from the annual statutory limit on H-1B visas and provide further benefits and flexibilities in the regulations. The proposed regulation allows additional flexibility for both beneficiaries and nonprofit and government research organizations.
H-1B Cap Exemptions. The NPRM proposes the following:
Automatic Extension of Authorized Employment. DHS proposes to provide flexibilities and address “cap-gap” issues by extending F-1 status and related work authorization until April of the relevant fiscal year. Currently, cap-gap is provided only until Oct. 1 of the relevant fiscal year.
Start Date Flexibility for Certain H-1B Cap-Subject Petitions. DHS also proposes greater flexibility on the requested H-1B employment start date listed on the Form I-129 petition to permit start dates that are after Oct. 1. Specifically:
DHS proposes to address H-1B Cap registration “abuse” by changing the way USCIS selects registrations. Several anti-fraud safeguards would be made to the current registration system to bolster the selection process and reduce the possibility of misuse and “gaming” of the system.
H-1B Registration System. Each beneficiary would have the same chance of being selected, regardless of how many registrations are submitted on their behalf.
Beneficiary-Centric Selection. Beneficiaries would be allowed to have more than one registration submitted on their behalf, but each beneficiary would be entered in the selection process only once. Thus, if a random selection were necessary, selection would be based on each unique beneficiary, rather than each registration.
Bar on Multiple Registrations Submitted by Related Entities. Currently, DHS does not allow related entities to file multiple petitions for the same beneficiary. The proposed change would also bar related entities from submitting multiple registrations.
Registrations with False Information or that Are Otherwise Invalid. Currently, the regulations state if the petition contains material that is not true and correct, inaccurate, fraudulent, or misrepresents a material fact, the petition is subject to grounds for denial or revocation. DHS seeks to codify those requirements and extend the same requirements to the information provided in the registration. Furthermore, if a petitioner submits more than one registration per beneficiary in the same fiscal year, the proposed regulations will consider all of the registrations to be invalid.
Alternatives Considered. DHS plans to continue using the registration system and will not revert to the old paper-based filing system. Efforts will be made to continue to enhance the registration system, and DHS welcomes public comment on this issue.
Provisions to Ensure Bona Fide Job Offer for a Specialty Occupation Position. The proposed rule would codify USCIS’s authority to request contracts, work orders, or similar evidence to establish the contractual relationship between all parties as well as state the minimum educational requirements to perform the job duties. The rule also seeks to codify the requirement that the petitioner establish that non-speculative employment exists at the time of filing the petition. The NPRM would:
Beneficiary-Owners. DHS proposes to clarify that beneficiary-owners may be eligible for H-1B status even when the beneficiary possesses a controlling interest in that petitioner.
Site Visits. DHS proposes to codify its existing authority to conduct site visits to maintain the integrity of the H-1B system. The NPRM would:
Third Party Placement. DHS proposes to clarify that if an H-1B worker will be placed at a third party’s organization, USCIS will consider the requirements of that third party, and not the petitioner, to determine whether the position is a specialty occupation.
On Oct. 6, 2020, the Department of Homeland Security (DHS) announced the Interim Final Rule (IFR), “Strengthening the H-1B Nonimmigrant Visa Classification Program.” This rule will be effective 60 days after publication in the Federal Register, with stakeholders given a 60-day comment period on the substance, then another 30-day comment period on new information collections proposed in the rule.
The rule largely focuses on “revamping” two large components of the H-1B program: 1) the definition of specialty occupation; and 2) third part worksites.
The term “specialty occupation” in the current regulations is defined in 8 C.F.R. 214.2: “Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.” In addition, the criteria as currently listed are:
8 C.F.R. 214.2(h). In the IFR, DHS is dropping the words “usually” or “normally required,” or “common to the industry” and will require the petitioner to establish that a bachelor’s degree is a specific specialty or its equivalent is a minimum requirement for entry into the occupation by showing that this is ALWAYS the requirement for the occupation as a whole.
Another large area of proposed change is with Third Party Placements. There will be a new employer-employee relationship definition, as described below. In addition, if the H-1B beneficiary’s worksite is a third-party site, that will be a factor in determining whether an employer relationship with that beneficiary exists. Employers will also need to review carefully whether there is a co-employment issue with the third-party placement firm. Third-party sites will now be subject to site inspections.
Below is a summary of the proposed changes, by topic:
Redefined terms:
In response to the Trump administration’s stance on immigration enforcement, California is considering legislation (Assembly Bill 450 (Chiu)) which would prohibit employers from providing federal immigration officials with access to nonpublic areas of the workplace without a judicial warrant. While aiming to provide new protections to workers, the bill’s broad language does not eliminate any employer obligations currently arising from Federal law. It does, however, have the potential to create contradictory and burdensome new requirements for employers in cases of government worksite investigations and internal audits conducted for compliance purposes.
AB 450 was introduced in February of this year and has been amended several times. The bill specifically references I-9 audits in many sections, while generally referencing government worksite enforcement actions in others. AB-450 would require employers to, among other things, notify all employees and their representatives, in writing, within 24 hours, that a worksite enforcement action has occurred. The requirement for notification of employee representatives probably refers to unions, but there are other circumstances when an employer may know an employee has legal representation (i.e. active workers compensation claims brought on behalf of employees). This requirement could arguably require an employer to maintain a list of the representatives of all employees for use in the event of such action. Moreover, the bill’s broad language may extend its notification requirements to include routine site visits performed for H-1B, L-1, and other nonimmigrant visa workers, as well as any other immigration-related inquiries conducted by any U.S. government agency, such as the U.S. Department of State or the U.S. Department of Labor. In addition to requiring notice in cases of government action, the bill would also require employers to notify the California Labor Commissioner prior to performing a self-audit of Forms I-9, a process many employers undertake to ensure compliance with Federal law.
The penalties AB 450 proposes for violations are significant. Employers who fail to comply could be assessed from $2,000 to more than $5,000 for a first violation and from $5,000 to more than $10,000 for each subsequent violation.
AB 450 passed the Assembly on May 31 and has been referred to the Senate Labor and Industrial Relations and Senate Judiciary Committees. Because it is keyed fiscal, the deadline for action by these policy committees is June 14, just prior to the legislature’s month long summer recess. We will keep you updated on the bill’s progress as it could have a significant impact on the internal policies of any California employer.
The U.S. immigration agency’s busiest day of the year was marked with reminders about the dark side of the H-1B visa program. Acceptance of H-1B cap-subject petitions started on April 3, 2017. But the flurry of H-1B filings were met with announcements from agencies involved with the H-1B program about measures designed to tighten policies and further regulate the H-1B program. These agency announcements indicate a coordinated message of cracking down on H-1B fraud in order to protect the U.S. worker.
USCIS Press Release and Policy Memorandum
While some U.S. Citizenship and Immigration Services (USCIS) employees were busy accepting what is expected to be several thousand H-1B petitions at its Vermont and California Service Centers on April 3, 2017, opening day of the 2017 H-1B lottery, other USCIS employees were putting the finishing touches on a press release outlining new plans to combat employer fraud and abuse in the H-1B visa program.
USCIS Press Release:
The release, titled “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse,” was a clear signal by USCIS that it plans to improve the integrity of the H-1B program and ensure that the program is in no way harming U.S. workers. USCIS said that its site visits, operated by its Fraud Detection and National Security (FDNS) directorate, will focus on employers who place employees offsite as well as employers who are H-1B dependent. H-1B dependency, which is defined by statute, means a high percentage of an employer’s workforce is made up of H-1B workers. This initiative is yet more evidence that USCIS is taking aim at third-party staffing companies. The press release also provided a USCIS email address for reporting suspected incidents of H-1B fraud and abuse and also reminded the public about additional ways it can let authorities know about possible misuse of the H-1B program via a Department of Labor form and by contacting Immigration and Customs Enforcement’s Homeland Security Investigations (HSI) unit.
USCIS Policy Memorandum:
On March 31, 2017, USCIS issued a policy memorandum to rescind the Dec. 22, 2000 guidance on H-1B computer-related positions. This March 2017 memorandum includes guidance that the Occupational Outlook Handbook (OOH), a long relied-upon resource for petitioners and attorneys alike to classify jobs and to confirm their status as specialty occupations, should no longer be used as the main resource to determine whether a position is a specialty occupation position. The guidance focuses heavily on the job code for “Computer Programmers,” which it notes may not qualify as a specialty occupation because most programmers have a bachelor’s degree, but some do not. Most notably, this guidance includes discussion about the Wage Level and corresponding prevailing wage, suggesting that a job that is coded at a Level I prevailing wage should be scrutinized heavily because it would “likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”
Department of Justice’s Immigrant and Employee Rights Section
The Department of Justice’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, also chimed in on H-1B cap opening day with a reminder to H-1B employers that they may not discriminate against U.S. workers. IER, which is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act (INA), explained in its press release that employers may violate the INA if they prefer to hire H-1B visa holders over U.S. workers.
Department of Labor’s Press Release
The Department of Labor (DOL) is the most recent agency to issue a press release for the purpose of combatting H-1B fraud, expressing support for the efforts of its colleagues at USCIS and DOJ, while adding its own plans. In addition to increasing its coordination with other federal agencies to investigate and prosecute misuse of the H-1B program, DOL said it is considering changes to the Labor Condition Application, which is a required part of the H-1B visa petition process, “to provide greater transparency for agency personnel, U.S. workers and the general public.” The DOL also said it would continue with its stakeholder engagements on how to improve the H-1B program so as to provide greater protections to US workers.
GT will continue to follow and report on and analyze these agency announcements and guidance.
Employers take note: If you file a new Labor Condition Application (LCA) for an H-1B employee to reflect a change in work location that is outside the metropolitan statistical area (MSA) of the original worksite stated on the LCA and corresponding H-1B petition originally filed for the H-1B employee, then you must also file an amended or new H-1B petition to reflect this material change. Failure to do so will be considered a material deficiency by U.S. Citizenship and Immigration Services (USCIS) and grounds for revocation of the underlying H-1B petition. Employers should also note that USCIS is expected to make 30,000 administrative H-1B and L-1 site visits this year with this being one of the agency’s top investigative priorities, thereby increasing the need for employers to ensure compliance with this rule for all active H-1B employees.
The line between permissible business visitor activities and unauthorized employment has come under heightened scrutiny. A recent large-scale raid – where foreign nationals were found working on B-1/ESTA entries – demonstrates how costly missteps can be.
The B-1 business visitor visa (and ESTA under the Visa Waiver Program) authorizes foreign nationals to enter the United States for limited business purposes. The Department of State defines permissible activities in the 9 FAM 402.2-5. Key examples include:
Employers should review activities against the FAM guidance and ensure travel is narrowly tailored.
When business visitor status is not appropriate, companies should explore work-authorized visas. Many allow short-term, intermittent, or part-time structures:
For situations where training, not employment, is the goal:
Companies may also consider developing their own training programs to lawfully host trainees in the United States with proper visa sponsorship.
The recent enforcement action underscores that the government is closely scrutinizing use of visitor visas. Companies should:
Bottom line: Visitor visas are a powerful tool for global commerce, but they cannot substitute for proper work authorization. Reviewing travel under the 9 FAM 402.2 framework is essential to compliance, business continuity, and protecting your workforce.
Part 1 provided an overview of immigration policy changes included in the Spring 2025 DHS Regulatory Agenda and included considerations for employers. Part 2 discusses potential impacts to specific industries and additional employer considerations.
Companies utilizing H-1B workers may face increased compliance requirements, including enhanced documentation standards, more frequent site visits, and stricter oversight of third-party placement arrangements. This is particularly relevant for consulting firms and technology companies that place workers at client sites or utilize complex corporate structures. University partnerships and research collaborations may be affected by cap exemption changes, potentially requiring institutions to compete in the annual lottery system for positions that were previously cap-exempt. Consulting and staffing firms may need to restructure their placement arrangements to comply with enhanced third-party oversight requirements, potentially shifting toward direct employment models rather than traditional consulting arrangements.
Businesses employing asylum applicants should monitor employment authorization policy developments, as proposed changes may affect the work authorization status of employees with pending asylum cases. Service-intensive industries that rely on workers with various immigration statuses may need to develop contingency workforce planning strategies to address potential changes in work authorization availability. Companies with diverse immigration status workforces should conduct comprehensive reviews of their compliance procedures to prepare for enhanced enforcement activities and changing regulatory requirements.
Academic medical centers and research institutions may be affected by cap exemption revisions, particularly if their nonprofit or university status is modified or if affiliated organizations lose exemption eligibility. Healthcare facilities employing workers across various visa categories should assess potential impacts from proposed employment authorization changes, particularly those affecting adjustment of status applicants and temporary status holders who provide critical healthcare services. Research organizations should monitor proposed changes to nonprofit exemptions and consider how modifications to cap exemption criteria might affect their ability to recruit and retain international talent for research projects and academic positions.
The Spring 2025 DHS Regulatory Agenda introduces changes to immigration policies that affect employers across multiple industries. While some changes have already taken effect, other proposals remain under development and subject to public comment periods and potential revision.
Employers should focus on complying with existing requirements while monitoring proposed changes that may affect their operations. The regulatory environment continues to evolve, requiring ongoing attention to policy developments and proactive planning for potential impacts.