Keeping Your Ducks in H-1B Row: Compliance Strategies for Employers

With an incoming administration vocal about its stance on immigration enforcement and safeguarding U.S. workers, employers who hire foreign workers on H-1B visas should make certain that they are maintaining compliance with U.S. immigration regulations. To avoid potential fines, penalties, or jeopardizing the status and work authorization of H-1B employees, it is critical to prepare for heightened scrutiny. This is especially important considering the new rule published on December 18, 2024, Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers (or the “Modernization Rule”), which introduces specific provisions regarding compliance with site visits conducted by U.S. Citizenship and Immigration Services (USCIS). To stay ahead of these challenges, U.S. employers should proactively prepare for government reviews and increased requests for transparency, including onsite visits to view H-1B related files. To navigate this evolving environment, this post provides practical tips for H-1B employers:

Review and Update Labor Condition Applications

A critical piece of H-1B compliance is the Labor Condition Application (LCA). Employers must file an LCA with the Department of Labor (DOL), attesting that H-1B workers are paid the appropriate wages for their occupation and worksite location. H-1B employers should ensure that:

LCAs are posted at the worksite for at least 10 days: Employers must physically post the LCA (or DOL-compliant notice) at the worksite location(s) to notify other workers of the terms of employment for H-1B employees.
LCAs are filed correctly: Double-check that the LCA accurately reflects the appropriate duties, salary, and worksite location(s). If any worksite has moved to a location beyond the normal commuting distance of the original worksite listed in the LCA, this may be considered a material change, thereby requiring a new LCA and filing of an H-1B amendment petition.
The H-1B workers’ salaries meet the required wage: Verify that wages for H-1B workers comply with DOL requirements. The “required” wage is the higher of the prevailing wage or the employer’s actual wage (in-house wage) for similarly employed workers. Failure to meet wage standards could result in fines and orders of backpay.

Prepare for Potential DOL Inquiries by Maintaining Accurate Public Access Files (PAF)

The DOL Wage and Hour Division (WHD) plays a critical role in ensuring employers comply with labor regulations, particularly those related to the H-1B program. One of their responsibilities is verifying that employers maintain and provide access to required Public Access Files (PAFs) in a timely manner. Employers are required to make specific materials publicly accessible within one working day of filing the LCA with the DOL. These materials must be available for inspection by any interested party. This means that anyone, whether an employee, job applicant or member of the public, can walk into the employer's office and request to see the PAFs.

Employers are required to maintain a PAF for each LCA. This file includes details about the LCA, wage rates, and working conditions and must be maintained for at least one year following the end of the H-1B worker’s employment pursuant to the respective LCA. Being prepared ensures compliance and demonstrates transparency in employment practices, which is essential during inspections or audits.

To stay prepared, H-1B employers must ensure the following:

Keep records updated: Ensure that the PAF is complete and available for inspection if requested. Note that the PAF can be requested by government agencies or by anyone from the public and must be provided within one working day. If there are qualifying changes to the employment of H-1B workers, these changes must be reflected in the PAFs.
Proper documentation: Include the employer’s name and address, documentation of the employee's job title and job duties, wage rate documentation, a copy of the signed LCA, summary of employee benefits, proof of LCA notice posting, proof of receipt of LCA by H-1B employee, and any additional documents reflecting any relevant corporate changes, or documentation of third-party client worksites.
Timely Availability of Public Access Records: Files should be carefully organized with public vs. private information sep Employers should carefully consider where to store PAFs and how to store them in order to ensure rapid retrieval during an inspection.
Electronic Storage: The hard deadlines and general audit readiness serve as reasons employers may want to consider electronic creation and storage of PAFs. Further, certain electronic systems can help with postings as well as tracking specific timelines for retaining and providing access to PAFs, thereby minimizing the risk of non-compliance penalties.
Design SOPs to identify the steps needed to facilitate and manage any in-person access to any individual who requests a review of your company’s PAFs. Establish points of contact and resources required for an on-site visit. These processes should also include investigation holds (pause purging).
- SOPs should include protocols and specific guidance in the event that an Interested Party (as opposed to a government officer) appears and requests to see PAFs.
Additional Documentation for H-1B-Dependent Employers: If the employer is classified as H-1B dependent, additional records and supporting information must be readily available.

By staying organized and understanding these requirements, employers can confidently navigate a DOL site visit or PAF request and demonstrate compliance with labor regulations.

Maintain Detailed Records of Employment

Note that immigration authorities may audit H-1B employers at any time to verify compliance with working conditions and pay requirements. To prepare for potential audits:

Job duties: Make sure that the duties being performed by the H-1B worker align with the job description submitted in the petition.
Changes in employment: If there are any material changes to an employee’s role or worksite location, ensure that the LCA is updated and an H-1B amendment petition is filed if necessary.
Track hours worked: Document and retain accurate records of hours worked by H-1B employees, especially for those in part-time roles or positions that might involve overtime.

Prepare for Potential FDNS Site Visits

Under USCIS, the Fraud Detection and National Security Directorate (FDNS) performs unannounced administrative site visits to ensure that employers are complying with H-1B regulations. These are separate and apart from any DOL audits. We expect that FDNS will be utilized by the next administration to a greater extent than the current leadership. Accordingly, inventorying your H-1B[i] population, regardless of the size, is a good idea for a new year’s project.

By way of background, the FDNS’ purpose is to detect, deter, and combat immigration benefit fraud and strengthen efforts to ensure that benefits are not granted to those who threaten national security or public safety. During the visits, FDNS officers collect data to verify information pertaining to petitions that are pending or already approved. These visits are unannounced and may take place at the employer’s principal place of business or at the H-1B worker’s place of employment, including a home office worksite for remote workers. FDNS does not need a subpoena for the site visit because the regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. However, employers may request that counsel be present during the visit, either in person or by phone. Additionally, USCIS often provides an opportunity for employers to address any adverse or derogatory information that results from the site visits.

Under the recently issued Modernization Rule, DHS included “other measures to improve the integrity of the H-1B program, including codifying its authority to conduct site visits.” Employers are now effectively required to comply with site visits conducted by USCIS, as a failure to cooperate may lead to petition denial or revocation. Employers will typically receive 48 hours' notice before a visit, except when the visit is prompted by a complaint or evidence of noncompliance. These additional measures enhance the authority of FDNS investigators and may be considered as an additional enforcement tool to be utilized by the incoming Trump administration, which has announced its intent to prioritize enforcement and eliminate fraud.

Noncompliance with site visits can result in significant consequences, including:

Revocation of H-1B Petitions: USCIS may revoke approved petitions if employers fail to comply with the terms of the petition or refuse to cooperate during site visits.
Potential Enforcement Actions: FDNS may refer instances of noncompliance to ICE for further investigation as well as other investigative units including the Bureau of Diplomatic Security if fraud, misrepresentation, or violations of immigration laws are suspected.

Employers are required to provide accurate information in their petitions and cooperate fully during site visits to remain compliant with the H-1B program. For detailed guidance, refer to the Modernization rule as published in the Federal Register.

Site visits typically focus on verifying that:

The H-1B worker is employed at the specified worksite location(s) indicated in the H-1B petition and corresponding LCA;
The worker is performing the specific duties detailed in the petition; and
The employer is paying the appropriate wage.

Note that in the past, FDNS has made requests that overreach their authority. With the updates included in the modernization rule and the anticipated increase in compliance reviews and scrutiny of visa programs, employers should be prepared to respond accordingly and make immediate outreach to their immigration counsel for assistance.

Prepare by:

Reviewing worksite compliance: Ensure your business locations are prepared for unannounced inspections.
Having a plan in place, which includes everything from greeting the FDNS officer to who should be contacted when the company is visited, what can and should be shared, the area(s) of the worksite the FDNS can visit, who they should speak to, etc.
Designating a point of contact: Assign a specific employee to oversee site visits and ensure that proper documentation (no more, no less) is readily accessible when requested. Furthermore, notify your immigration counsel for anything non-routine.
Reviewing rules for third-party placement of H-1B workers, to ensure new obligations in the Final Rule are met.

Train HR on H-1B Compliance

Training is essential to ensure all relevant parties understand the complexities of H-1B compliance, including internal legal, HR, and payroll staff.

Educate on visa nuances: Make sure that those responsible for H-1B compliance understand the specifics of H-1B change of employer, extension, and amendment petitions. Emphasize the gravity of ensuring that the terms of employment for sponsored workers match the details in their H-1B petitions. This includes, in particular, the worksite location(s), job function, and employing entity.
Stay informed of policy changes: Policies surrounding H-1B workers can change rapidly, so ongoing education will help ensure compliance.

Audit Your H-1B Workforce

Conduct regular audits of your H-1B workforce to identify any potential compliance issues before authorities flag them. This proactive approach can help course correct and minimize the potential for costly penalties.

Review visa statuses: Confirm that all H-1B employees are in valid status and have properly filed extensions or amendments when necessary.
Confirm job duties and wages: Ensure that H-1B employees are performing the duties listed in their petitions and are being paid at least the salaries listed in their H-1B petitions.
Review other issues including worksite changes.
Consider mock onsite inspections to perform real time evaluations of your process, policies, and people.

Work with Experienced Immigration and Immigration Compliance Counsel

Securing H-1B visas is a critical step for employers hiring foreign talent, and immigration attorneys are indispensable for navigating this process. Experienced immigration counsel is critical to filing petitions, ensuring the necessary documentation meets regulatory standards, and managing the intricate details of visa applications. Their expertise is essential for a smooth visa approval process and resolving issues that arise during adjudication.

Ensuring that your team of professionals is able to step beyond the initial visa process to help establish and maintain strong compliance systems should be considered. Compliance specialists can partner with your immigration attorneys on ensuring public access files, wage documentation, and other records are properly maintained; preparing employers for site visits and audits; and mitigating risks related to noncompliance. Immigration compliance attorneys should provide proactive guidance to prevent violations and strategic advice to navigate enforcement actions or legal challenges.

In today’s climate of heightened regulatory scrutiny, having a team of attorneys that specialize in visa filings as well as compliance is not just beneficial—it’s essential. Each serves a unique and complementary role, working together to protect your business, ensure compliance, and secure the talent you need to thrive.

What’s Next?

H-1B employers should be proactive and vigilant to avoid compliance pitfalls in a more challenging enforcement environment. By reviewing internal practices, testing existing processes, maintaining accurate records, and seeking expert legal guidance, H-1B employers can remain prepared for potential audits or investigations, and avoid potential penalties, back wage liability, and issues with future sponsorships.

For more information relating to FDNS matters, DOL immigration-related wage and hour investigations, general H-1B compliance, Form I-9 or E-Verify compliance including how to prepare for a worksite enforcement action and notice of inspection, internal immigration assessments, worksite enforcement audits, and DOJ-IER anti-discrimination matters including foreign sponsorship and export control/ITAR issues, please consider the Seyfarth Immigration Compliance Group.

This Alert was originally published on the Seyfarth Immigration blog here. Subscribe to stay informed about immigration compliance and enforcement updates in 2025.

[i] FDNS also conducts routine site visits for L-1, EB-5, and special immigrant religious worker petitions and is also relied on for other types of agency investigation support.