Navigating New Compliance Risks for Federal Contractors with Immigrant Teams

Understanding the New Legal Landscape

Federal contractors must now:

• Certify compliance with anti-discrimination laws as a condition of payment.
• Eliminate explicit Diversity, Equity, and Inclusion (DEI) programs and language.
• Demonstrate merit-based hiring practices.
• Maintain meticulous documentation of qualification-based decisions.

The False Claims Act and Immigration Compliance

The FCA, originally enacted in 1863, has evolved into a powerful tool for the federal government to recover funds lost through fraud. The new executive orders link the FCA to immigration compliance by requiring contractors to certify their adherence to anti-discrimination laws as a condition of payment. This creates significant risks for immigration programs.  

Key FCA implications:

• Materiality: A false claim is “material” if it would have influenced the government’s payment decision.  
• Penalties: Include triple damages, civil penalties, and potential whistleblower lawsuits.  

Immigration Program Risks

Traditional immigration processes now face heightened scrutiny. Here’s why:

• PERM Labor Certification: Any indication that diversity initiatives influenced recruitment, job postings, or candidate selection could be viewed as a false claim.
• H-1B Petitions: Statements about seeking global perspective or cultural competency could be misinterpreted as discriminatory, potentially triggering FCA violations.

Protecting Your Immigrant Workforce

Organizations must take proactive steps to ensure compliance while supporting their existing immigrant employees.

• Performance Documentation: Focus on technical skills, qualifications, measurable achievements, and project contributions to demonstrate merit-based employment.
• Recruitment Practices: Use skills-based job descriptions, provide market-based recruitment evidence, and maintain clear documentation of objective, merit-based selection processes.

Adapting Critical Immigration Processes

PERM Labor Certification:

• Demonstrate that U.S. workers were sought using objective, skills-based criteria.
• Base salary solely on market conditions and experience.
• Document specific skill deficiencies for any disqualified U.S. workers.
• Justify business necessity with clear, qualification-based documentation.

Job Posting Language:

Instead of: “We value diverse perspectives and encourage applications from underrepresented groups.”

Use: “We seek qualified candidates with specific technical skills including [detailed list].”

H-1B Petitions:

• Justify the need for foreign workers based solely on skills and qualifications.
• Focus on specific technical skills, educational requirements, market-based wages, and specialized knowledge.

Business Necessity Documentation:

Instead of: “This position requires global perspective and cross-cultural communication skills.”

Use: “This position requires specific technical expertise in [detailed description of technical skills].”

Unsure if your PERM labor certification or H-1B petitions meet the new standards? Boundless can help you navigate the complexities of these processes. Learn more.

Compliance Best Practices

• Documentation: Maintain updated policies emphasizing qualification-based decisions, clear performance evaluation criteria, objective promotion standards, and records of skills-based professional development.
• Risk Management: Review all immigration-related documentation for DEI references, update labor certification reports, revise petition language, and create clear compliance audit trails.

Actionable Checklists

For PERM Labor Certification:

Remove all references to DEI initiatives from recruitment reports.

Ensure job postings focus solely on skills and qualifications.

Document all candidate disqualifications with specific, skills-based reasons.

 Clearly articulate business necessity based on objective qualifications.

For H-1B Petitions:

Eliminate any mention of “global perspective” or “cultural fit.”

Provide detailed justifications for the foreign worker’s skills and qualifications.

Connect educational requirements directly to specific job duties.

Ensure wage determinations are based on market data.

Sample Language

Performance Reviews:

Instead of: “Excellent communication and interpersonal skills are essential for building relationships with diverse teams.”

Use: “Strong written and verbal communication skills are consistently demonstrated, enabling clear and effective project collaboration with colleagues.”

Key Takeaway: Success hinges on creating a clear documentation trail that emphasizes qualifications and skills, eliminating any perception that diversity influenced hiring decisions.

Proactive Measures

• Conduct internal audits of all immigration-related documentation and processes.
• Provide training to HR staff and hiring managers on the new compliance requirements.
• Implement ongoing monitoring and adapt to evolving legal interpretations.

Don’t let these new regulations derail your immigration programs. Boundless provides strategic legal support and proactive guidance to ensure compliance in a rapidly changing environment. Contact us today to learn how we can help.

Looking Forward

While these changes require adjustments, organizations can maintain effective immigration programs by focusing on skills, qualifications, and meticulous documentation. By implementing consistent, merit-based evaluation processes, companies can continue to build strong teams that include immigrant talent while effectively managing their compliance risks.

FAQs