In a settlement reached with the Department of Labor recently, a Southfield, Mich. Firm has agreed to pay $2,250,000 in back wages to 232 computer professionals and a $400,000 fine to settle immigration law violations. The company is also prohibited from participation in the H-1B visa program for 18 months.
The H-1B visa program allows foreign workers to enter and work temporarily in the United States in professional level jobs such as computer programmers, engineers, medical doctors and teachers. H-1B workers must be paid at least the same wage rates and benefits as those paid to U.S. workers already doing the same job in the same area. An employer hiring an employee on an H-1B visa is required to make certain attestations on Form ETA-9035, the Labor Condition Application (LCA), as a prerequisite to H-1B approval.
What does LCA contain?
The LCA contains basic information about the proposed H-1B employment such as rate of pay, period of employment, and work location. It also contains four standard attestations or promises that the employer must make. The employer must document compliance with the LCA requirements in a public access file. To learn more about LCA attestations and the public access file, read our article Labor Condition Application: An overview.
How does DOL learn about H1B violations?
The case of the computer firm is not a one-off case of immigration law violations by employers. The Department of Labor (DOL) has established a process for handling complaints concerning failure to meet the conditions of an LCA, or of making misrepresentations. The Wage and Hour Division of the DOL enforces the H-1B wage provisions of the Immigration and Nationality Act, in addition to other federal laws pertaining to wage payments.
An investigation by the DOL's Wage and Hour Division found that the computer firm brought non-immigrant H-1B workers into the U.S., but failed to pay them the minimum required wage rates in the areas where they were employed. The investigation also disclosed that the firm frequently “benched” the workers without compensation contrary to the rules of the H-1B program.
What can be the effects of these violations?
A lot of employers, innocently or deliberately, commit various acts that violate the immigration regulations and thus, become exposed to sanctions including back pay, civil fines, and disqualification from USCIS approval of employment-based immigrant petitions or H, L, O, and P nonimmigrant petitions. For more information on how to avoid DOL penalties, read our article LCA Compliance issues: Avoiding DOL penalties.
How can we help you?
With LCA investigations by the DOL on the rise, it is critical for employers not to commit any H1B LCA violations.VisaPro performs audits of LCA compliance programs and Public Access Files, assisting companies and corporations to document their good faith efforts to comply with all regulations. Combining our legal knowledge of the H-1B and LCA regulations with our experience representing companies through LCA investigations, VisaPro provides clients with the tools necessary to run a successful H-1B program, including the preparation of Public Access Files. If you would like to discuss the compliance issues specific to your company, please contact us.
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