October 02, 2026 – Weekly Immigration News Update.

• Issued dozens of subpoenas in foreign labor fraud investigations
• Executed search warrants at employer facilities and consulting firms
• Opened investigations involving allegations of worker exploitation and potential human trafficking

• Layoffs in the past 12 months at sponsoring employers
• Planned layoffs that would negatively affect similarly situated U.S. workers
• H-1B applications from companies with layoff histories across all visa processing steps

• Enforcement intensity is increasing. Investigations that took years will now move faster.
• Employer behavior will change the program’s shape. Companies that cannot demonstrate bona fide employment practices will be excluded. This creates a different program by reducing access for non-compliant users, not by legislative action.

Why This Matters: The Enforcement Reality:

• The visa sponsor (the consulting firm)
• The actual employer (the client company)
• The worker’s actual supervisor and working conditions

1. Conduct a payroll audit
   • Pull 12 months of pay stubs for every H-1B worker
   • Verify wages match the approved LCA wage level (base + benefits)
   • Confirm no unexplained gaps or underpayments
   • Document the business reason for any pay changes
2. Map work assignments and locations
   • Create a timeline of each worker’s assignments in the past 12 months
   • Document where work was performed (client site, your office, remote)
   • Collect contemporaneous emails or assignment letters
   • Identify any gaps between projects and explain them (leave, training, new assignment)
3. Review job duties against actual work
   • Pull recent performance reviews or project documentation
   • Compare against the approved LCA job description
   • If actual work differs materially, document why and what changed
   • For petitions filed earlier this year, ensure work has not drifted
4. Document voluntary leave correctly
   • If any worker has taken unpaid leave, pull the written agreement
   • Verify it specifies start date, end date, and maximum duration (≤60 days)
   • Confirm the worker actually returned to work or was properly terminated
   • Remove any worker from payroll if leave exceeded limits
5. Review recent layoffs
   • List all U.S. workers laid off or separated in the past 12 months
   • List all H-1B petitions or extensions filed in the same period
   • Identify whether any H-1B positions are similar to laid-off U.S. roles
   • Prepare a written explanation for any close calls (different department, skill set, timing)
6. Maintain your public access file
   • H-1B employers are required to keep a file available for inspection
   • The file must include all job postings, resumes received, and hiring records
   • Update it immediately if it is missing documents
   • Organize it by worker name and hire date for easy review
7. Prepare for a DOL inquiry
   • Have a designated point of contact (legal counsel or HR manager)
   • Establish a protocol for responding to subpoenas or document requests
   • Do not destroy or “clean up” old emails or files
   • Understand that delays in response will trigger compliance concerns

If You Are a Staffing or Consulting Firm:

1. Define the employment relationship clearly
   • For each H-1B worker, document:
     • Whether your firm is the true employer (you manage, supervise, and control the work)
     • Or the worker is placed at a client and the client controls the work
   • If the client controls the work, your firm must still verify compliance with H-1B requirements
   • Do not rely on the client company’s assurance that “everything is fine”
2. Verify direct supervision and control
   • Can you demonstrate that you (not the client) are directing the worker’s daily work?
   • Do you conduct performance reviews, approve time off, and handle payroll?
   • Do you have the right to reassign the worker to other clients or projects?
   • If the answer is “the client handles all of this,” you have a compliance problem
3. Audit your placement agreements
   • Review contracts with every client company where you place H-1B workers
   • Verify the contract specifies:
     • Your firm remains the H-1B sponsor and primary employer
     • The client cannot terminate the worker unilaterally
     • Your firm conducts payroll, benefits administration, and tax withholding
     • Your firm is responsible for ensuring H-1B compliance at the worksite
   • Agreements that treat the placement as a pure staffing arrangement without your firm’s ongoing control are high-risk
4. Document the work performed
   • For each worker at each client site:
     • Maintain timesheets or project records showing actual duties
     • Conduct quarterly check-ins to verify job duties match the LCA
     • Document any material changes to the work scope
     • Keep a file of communications with the client about the worker’s role
   • Do not rely on the client’s word; maintain your own records
5. Review billing and payment flows
   • Confirm that your firm is billing the client, not the worker
   • Verify that your firm is paying the worker directly (via payroll, not cash)
   • Document that the markup or fee you charge does not reduce the worker’s approved wage
   • Be prepared to show that payment flows are consistent with your firm being the employer
6. Prepare for audit requests
   • The OIG may request:
     • Placement agreements with all client companies
     • Timesheets for selected workers
     • Billing invoices and payment records
     • Internal emails about worker placements
     • Compliance checklists or quality assurance reviews
   • Have these organized and readily available

What This Means for Workers:

1. Keep your own employment records
   • Save copies of your offer letter, job description, and all performance reviews
   • Maintain pay stubs showing the wage you agreed to
   • Take screenshots or print emails about your job duties and assignments
   • Document any periods of leave, reassignment, or gaps in employment
2. If your employer experiences an investigation
   • Do not assume you will be deported or lose your status
   • Do not attempt to hide employment gaps or changes
   • Consult with an immigration attorney before speaking to investigators
   • Retain all documents related to your employment history
3. If you are placed at a client site
   • Understand who your actual employer is (the staffing firm or the client)
   • Know who approves your time off, evaluates your performance, and handles your payroll
   • Report to your immigration attorney if there is confusion about your work arrangement
4. Watch for warning signs
   • Unexplained gaps in paychecks
   • Being told to go on unpaid leave without a written agreement or return date
   • Sudden changes to your job duties or worksite without notification
   • Pressure to work for a different company than the one listed on your visa
   • Any indication that your visa sponsor is not involved in your day-to-day employment

• Stops paying the worker
• Stops the visa petition
• Tells the worker to go on unpaid leave indefinitely
• Removes the worker from the payroll

• “Show me the current projects this worker is assigned to.”
• “Why is there a gap in paychecks between July and September?”
• “Who authorized this unpaid leave? For how long?”
• “When did you decide to end the employment?”

The Three Correct Paths Forward:

Option 1: Legitimate Internal Assignment (Preferred)

1. Notify the worker in writing with:
   • Specific termination date
   • Reason (no longer required for the position, lack of available work, end of contract, etc.)
   • Final paycheck amount and date
   • Information on COBRA, benefits, and return of property
2. Ensure final wages are paid in full, including:
   • Accrued paid time off (if applicable by state law)
   • Any bonuses or commissions earned
   • Reimbursable expenses
3. Document the business reason:
   • Why the position no longer exists
   • What changed (client project ended, budget cuts, reorganization)
   • Why no other role was available
4. Notify USCIS of the termination (if required by the petition):
   • Some petitions require notification of “material changes” in employment
   • File Form I-129 with a “Termination of Worker” addendum if instructed
5. Comply with DOL requirements:
   • For H-1B workers, provide written notice of termination
   • Some state laws require advance notice; follow your jurisdiction’s rules

FDNS-Ready Termination Documentation:

• Written termination letter with date and reason
• Final pay stub showing all earned wages paid
• Return of company property (laptop, badge, documents)
• Confirmation that the worker is aware of the termination
• Any separation agreement (if applicable)
• Email confirming the worker’s understanding and return date of property

What NOT to Do (Red Flags for FDNS)

•  ❌Do not suddenly stop paying a worker with no explanation
• 
 ❌Do not have an indefinite “unpaid leave” with no return date
• 
 ❌Do not tell the worker verbally they are laid off but keep them on payroll
• 
 ❌Do not reassign a worker without notifying them or documenting the change
• 
 ❌Do not fail to pay accrued wages or final pay
• 
 ❌Do not let gaps in employment or status drift for weeks with no documentation

The FDNS Visit: What to Have Ready:

• Current assignment and project name
• Pay stubs for the last 12 months showing continuous or clearly documented gaps
• Employment agreement or offer letter
• Written communication about any leaves, reassignments, or terminations
• LCA (Labor Condition Application) showing the job duties
• Timesheets or project records showing work being performed
• Email chain confirming reassignments or leave approvals
• Termination letters for workers no longer employed (if applicable)

1. Decide immediately whether the worker will continue (reassignment), take leave (documented, time-limited), or leave your company (termination)
2. Communicate in writing what has been decided
3. Execute consistently with no gaps or confusion
4. Keep records of your decision-making and communication

New Fee Schedule: