The internal watchdog at the Department of Labor (DOL) released a report last week which shows how an “aggregation of known vulnerabilities” in 4 of 6 programs used to hire foreign workers leave them “highly susceptible to fraud.” In its review of more than 15 years of audits and investigative work, the DOL’s Office of Inspector General (OIG) presented a sobering look at ongoing abuses and the betrayal of the American worker.
In 2003, the DOL OIG issued a “white paper” that rang the first alarm bells about how foreign labor certification programs were open to abuse. The new report is a review of audits and other investigative work conducted since then and determined that the permanent labor certification (PERM), and three temporary foreign worker programs – the H-1B, H-2A and H-2B – all remain open to fraud and abuse.
In “Overview of Vulnerabilities and Challenges in Foreign Labor Certification Programs,” the OIG lays out how inefficiencies, poor management and outdated regulations give latitude to employers to violate the programs’ requirements. The report stated that the four programs all “face a number of challenges and vulnerabilities” but made note of two of the four.
The OIG called attention the unconscionable fact that with regard to H-1B workers, DOL “can only deny incomplete and obviously inaccurate applications and conduct complaint-based investigations, challenges in protecting the welfare of the nation’s workforce.” Then there is the PERM program, which the report stated “relentlessly has employers not complying with the qualifying criteria.”
In addition to willful violations by employers, such as paying workers less than the established wage rate or not employing a worker in the job for which they were approved, some vulnerabilities are a result of pure government incompetence.
For example, prior to filing an application for a foreign worker with the DOL’s Employment and Training Administration (ETA), an employer is required to put an advertisement in a newspaper on two different Sundays to inform Americans of the work opportunity. In today’s LinkedIn world and online recruiting, can a weekly newspaper ad really be considered an honest attempt to find native-born labor? No, and it is a sign of what the OIG called the PERM program’s “outdated” regulations.
In addition, the report added that a majority of its applications are reviewed “without any supporting documentation” and that as long as “employers are not complying with the qualifying criteria or conditions of employment, the PERM program still remains highly susceptible to fraud.”
Over the last year, the DOL has addressed some of the ongoing concerns about foreign labor programs by increasing worksite enforcement efforts and has used the regulatory process to strengthen worker protections.
The DOL’s Wage and Hour Division has been more aggressive in holding employers accountable for violating program requirements. Last Friday, for example, it was announced that a Mississippi fish farm had to pay $30,963 in back wages to 38 employees after they were found to have violated requirements of the H-2A visa program, which brings in temporary agricultural foreign labor.
But identifying cases of fraud is not enough if there is no accountability. The OIG called upon the Department last month to increase its exclusion of “unscrupulous employers” in order to “ensure the full protection of U.S. and foreign workers and employers who followed laws and regulations and hold violators accountable.”
For more than 15 years, deeply-flawed foreign labor programs have allowed workers to be exploited and law-abiding businesses to be cheated. The “cures” have not made the system healthier and may have even worsened the disease. The incoming Biden administration and members of Congress must seriously consider whether the best interests of American workers are served by these fraud-ridden programs.