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Department of Labor to Ramp Up Investigations of Foreign Worker Visa Programs

Dilip Patel


The Department of Labor has a minor but important role in some immigration matters, including the H-1 and H-2 visa programs and labor certification applications for employment-based green cards. After reviewing the DOL’s foreign worker visa programs, Labor Secretary R. Alexander Acosta announced actions to increase protections for American workers while aggressively confronting entitles that are committing visa fraud and abuse. The department is directing its Wage and Hour Division and the Employment and Training Administration to use all their tools in conducting civil investigations to enforce labor protections provided by the visa programs, to make changes to the labor condition application (LCA) needed for the H-1B visa, and to identify systematic violations and potential fraud. The Office of the Solicitor General will coordinate the enforcement efforts and refer criminal findings to the Office of the Inspector General. Pursuing this new direction, the DOL recently obtained a preliminary injunction of the H-2A visa program for a farming operation in Arizona where illegal and potentially life-threatening housing was being provided to the foreign workers. Other legal actions against H-1B and H-2B violators are likely on the way.

ICE Pursuing Cases that Were Previously Administratively Closed, Even Non-Criminal Related

Under the Obama Administration, certain undocumented immigrants were permitted to have their immigration cases administratively closed in the exercise of prosecutorial discretion (PD), which in essence was a form of relief from deportation. Often this was granted when an undocumented parent of U.S. citizen children was placed in removal proceedings. The Trump Administration terminated the policy of prosecutorial discretion, and now Immigration and Customs Enforcement (ICE) has begun pursuing cases that were previously administratively closed. While ICE headquarters has indicated that it is re-calendaring cases only where there is an arrest or conviction subsequent to the administrative closure and that it is not seeking to re-calendar all of the cases that were administratively closed for PD, some local ICE offices are seeking to re-calendar PD cases even when there was no intervening arrest or conviction.

Immigration Courts and Backlog

Immigration courts have an enormous backlog that has not only persisted, but grown exponentially over the years. In 2006, the average case processing time was about 198 days. A decade later, the same case will take 650 days to process. Government officials attribute the backlog to a number of factors: staffing shortages, lack of resources, changing agency priorities, etc. The immigration court backlog continues to grow during a time when the number of immigration judges on staff to handle cases increased by 17 percent. This is because immigration judges are taking more time to process cases; they are granting more continuances to allow foreign nationals to build their cases.

The Department of Justice has started hiring and relocating judges to detention centers on the southern border, but some experts are concerned that simply having more immigration judges will not solve the backlog problem. The Government Accountability Office found that Executive Office for Immigration Review (EOIR) — the DOJ office that is responsible for immigration courts, judges and staff — is lacking critical management, accountability, and performance evaluation systems. These mechanisms are essential for EOIR and oversight bodies, such as Congress, to accurately assess the immigration courts and ensure that EOIR is achieving its mission, which includes timely adjudication of all cases. While hiring more immigration judges is needed to replace the roughly 39 percent of current judges eligible for retirement, it will not have a positive effect on the overall case processing times. EOIR will have to reevaluate its own practices and capabilities in order to reduce the current backlog, not just hire more judges.

Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email

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