Labor Dept. IG: Foreign Worker Programs Still Susceptible To Fraud
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and Challenges in ForeignLabor Certification Programs,” the OIG lays out how inefficiencies, poormanagement and outdated regulations give latitude to employers to violate the programs’requirements. The report stated that the four programs all “face a number ofchallenges and vulnerabilities” but made note of two of the four.
The OIG called attention the unconscionable fact that withregard to H-1B workers, DOL “can only deny incomplete and obviously inaccurateapplications and conduct complaint-based investigations, challenges inprotecting the welfare of the nation’s workforce.” Then there is the PERMprogram, which the report stated “relentlessly has employers not complying withthe qualifying criteria.”
In addition to willful violations by employers, such as payingworkers less than the established wage rate or not employing a worker in thejob for which they were approved, some vulnerabilities are a result of puregovernment 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 No, and it is a sign of what the OIG called the PERM program’s “outdated” regulations.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 itsapplications are reviewed “without any supporting documentation” and that aslong as “employers are not complying with the qualifying criteria or conditionsof employment, the PERM program still remains highly susceptible to fraud.”
Over the last year, the DOL has addressed some of theongoing concerns about foreign labor programs by increasing worksiteenforcement efforts and has used the regulatory process to strengthen workerprotections.
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.