DOL Audit and the Nuts and Bolts of H-1B Visa Compliance

DOL Audit and the Nuts and Bolts of H-1B Visa Compliance

Department of Labor (DOL) Investigation of H-1B Visa Program Violations

During a Department of Labor Wage and Hour Investigation of the H-1B visa program, the following issues are typically examined. As an aggrieved H-1B worker, you may be asked to identify one or more of the following elements during the investigation:

Alleged Violations Checklist:

1. Employer supplied incorrect or false information on the Labor Condition Application (LCA).
2. Employer failed to pay nonimmigrant worker(s) the higher of the prevailing or actual wage.
3. Employer failed to pay nonimmigrant worker(s) for time off due to a decision by the employer or for time needed to acquire a license or permit.
4. Employer made deductions from nonimmigrant worker's wage that caused the wages to fall below the required amount.
5. Employer does not provide nonimmigrant worker(s) with working conditions on the same basis as U.S. worker(s), or the employment of nonimmigrant worker(s) adversely affects the working conditions of U.S. worker(s).
6. Employer failed to comply with the "no strike/lockout" requirement.
7. Employer failed to provide notice of intentions to hire nonimmigrant worker(s) or failed to provide a copy of the LCA.
8. Employer required nonimmigrant worker(s) to pay scholarship and training fees (ACWIA fee).
9. Employer imposed an illegal penalty on nonimmigrant worker(s) for ceasing employment.
10. Employer retaliated or discriminated against an employee, former employee, or job applicant.
11. Employer failed to maintain and make available the LCA and necessary documents for public examination.
12. H-1B dependent/willful violator employer displaced U.S. worker(s) in its own workforce or at another employer's worksite.
13. H-1B dependent/willful violator employer failed to recruit U.S. worker(s) for jobs sought by H-1B worker(s).
14. H-1B dependent/willful violator employer failed to hire equally or better qualified U.S. worker(s) for the job.

Please note that allegations of failure to offer employment to an equally or better qualified U.S. worker, or misrepresentations regarding such offers, may be filed with the Immigrant and Employee Rights Section of the U.S. Department of Justice, Civil Rights Division at https://www.justice.gov/crt/filing-charge.

At our law firm, we understand the complexities of the H-1B visa program and are here to assist and guide both employers and employees through the process. We have represented both Employer and Employee in hundreds of DOL Audit of H-1B visa programs. If you have any concerns or require legal representation in relation to H-1B visa program violations, please don't hesitate to contact us.

Part I: The Nuts & Bolts of H-1B Program Compliance

Chapter 1: H-1B Program Fundamentals

Basic Requirements

The United States, under the Immigration and Nationality Act (INA), allows for the employment of alien workers in certain specialty occupations under the H-1B program. In most instances these specialty occupations require a bachelor's degree or its equivalent. Alien workers, including software engineers, research scientists, teachers, accountants, medical doctors, and physical therapists may be employed under the H-1B visa classification, as may fashion models of distinguished merit and ability. The number of new H-1B visas that can be issued is currently capped at 65,000 during a fiscal year; an additional 20,000 are available to those individuals who received a master's degree or higher from a U.S. institution of higher education.

H-1B visa status requires a sponsoring U.S. employer; an individual cannot gain status on his or her own. In order for an employer to petition for an alien worker under the H-1B program, the employer must first file a Labor Condition Application (LCA) with the Department of Labor (DOL). Once the approved LCA is issued by the DOL, the employer can file an H-1B nonimmigrant petition on behalf of the alien worker.

In the LCA, the employer must attest that it will:

(1)   Pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; and offer benefits on the same basis as for U.S. workers;

(2)   Provide working conditions for H-1B workers that will not adversely affect the working conditions of workers similarly employed;

(3)   Not employ an H-1B worker at a location where a strike or lockout in the occupational classification is occurring, and notify the Employment and Training Administration (ETA) of any future strike or lockout; and

(4)   On or within 30 days before the date the LCA is filed, provide notice of the employer's intent to hire H-1B worker(s). The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B worker will be employed. If there is no bargaining representative, the employer must post such notices for 10 consecutive days in at least two conspicuous locations at each place of employment, or provide them electronically. A copy of the LCA must also be provided to the nonimmigrant worker.

Upon DOL certification of the LCA, the employer files the U.S. Citizenship and Immigration Services (USCIS) Form I-129, Petition for a Nonimmigrant Worker, the required filing fee, and other supporting documentation including the approved LCA with USCIS. Unless specifically exempt under the law, the employer must pay USCIS filing fees.

“H-1B dependent employers” and “willful violators” of the H-1B program face additional rules. Roughly, an H-1B dependent employer is one whose H-1B workers comprise 15% or more of the total workforce; different thresholds apply to smaller employers. H-1B dependent employers can be exempt from the additional rules if they hire only H-1B workers who are paid at least $60,000 per year or have a master's degree or higher in a specialty related to their employment. Further details can be found under Chapter 2: Additional Requirements for H-1B Dependent Employers & Willful Violators.

Qualifying Criteria

In order for an employer to hire a foreign worker on an H-1B visa, the job must be a professional position that requires, in almost all instances, a bachelor's degree in the field of specialization. The occupation for which H-1B visa classification is sought must also normally require a bachelor's degree as a minimum for entry into the occupation.

According to the Department of Labor, each employer seeking to hire an H-1B nonimmigrant worker has the following responsibilities:

(1)   The employer shall submit a completed Labor Condition Application (LCA) in the manner prescribed by the regulations. By completing and signing the LCA, the employer agrees to several attestations regarding an employer's responsibilities, including the wages, working conditions, and benefits to be provided to the nonimmigrant.

(2)   The employer shall make the LCA and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. or the place of employment within one working day after the date on which the LCA is filed with the DOL.

(3)   The employer may then submit a copy of the approved LCA to U.S. Citizenship and Immigration Services (USCIS) with a completed petition requesting H-1B classification.

(4)   The employer shall not allow the nonimmigrant worker to begin work until USCIS grants the worker authorization to work in the U.S. for that employer; or in the case of a nonimmigrant who is already in H-1B status and is changing employment to another employer, until the new employer files a petition supported by a certified LCA.

(5)   The employer shall maintain documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged. The employer shall also maintain such documentation at its principal place of business in the U.S. and shall make such documentation available to DOL for inspection and copying upon request.

H-1B Validity

The H-1B visa certification is valid for the period of employment indicated on the Labor Condition Application (LCA), for up to three years. The employer has the burden of establishing that qualifying employment is available for the duration of the requested validity period.

An alien worker can be in H-1B status for a maximum continuous period of six years. After the alien worker hits his or her six year maximum stay in H-1B status, the alien worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain alien workers with labor certification applications or immigrant visa petitions in process for extended periods may extend H-1B status beyond the six-year limitation.

H-1B “Portability”

The statutes include a “portability” provision intended to preserve the legal status of an H-1B nonimmigrant worker who is already in the United States. Portability allows an     H-1B alien worker to enter into employment with a new employer when the new employer has a) filed a Petition for Nonimmigrant Worker for the employment of the    H-1B worker before the expiration of the alien worker's previously authorized period of stay and b) the new employer has submitted an unexpired, approved Labor Certification covering the work the individual is being hired to perform.

An H-1B nonimmigrant who is employed under a valid LCA with one employer can accept new employment upon the date of filing by the prospective employer of a new petition on the H-1B worker's behalf. The H-1B worker does not need to wait for the petition to be adjudicated before beginning work for the new employer; employment may commence upon the filing's receipt by USCIS.

Chapter 2: Additional Requirements for H-1B Dependent Employers & Willful Violators

Defining the “H-1B Dependent” Employer

The following criteria establish that an employer is H-1B dependent:

(1)   Employer has 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or

(2)   Employer has 26-50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or

(3)   Employer has 51 or more full-time equivalent employees of whom 15 percent or more are H-1B nonimmigrant workers.

Any group treated as a single employer under the Internal Revenue Code (IRC) at 26 U.S.C. 414 (b), (c), (m) or (o) shall be treated as a single employer for purposes of determining H-1B dependency status.

The H-1B dependent calculation of “full-time equivalent” employees (FTEs) is to include only persons employed by the employer, and does not include bona fide consultants and independent contractors. The determination of FTEs is based on the employer's quarterly tax statement, or similar document, assuming there is no issue as to whether all employees are listed therein.

To determine the number of hours of work by part-time employees, for purposes of aggregating such employees to FTEs, the last payroll, or the payrolls over the previous quarter if the last payroll is not representative, is used; or where hours of work records are not maintained, other available information is to be used to make a reasonable approximation of hours of work, such as a standard work schedule. A full-time employee is one who works 40 or more hours per week, unless the employer can show that less than 40 hours per week is full-time employment in its regular course of business; however, in no event would less than 35 hours per week be considered to be full-time employment. It should be noted that an employee who commonly works more than the number of hours constituting full-time employment cannot be counted as more than one FTE.

For purposes of FTE determination, a part-time employee is one who regularly works fewer than the number of hours per week which constitutes full-time employment. The aggregation of part-time employees to FTEs may be performed by either of the following methods: (1) Each employee working fewer than full-time hours count as one-half of a FTE, with the total rounded to the next higher whole number; or (2) The total number of hours worked by all part-time employees in the representative pay period, divided by the number of hours per week that constitute full-time employment, with the quotient rounded to the nearest whole number.

An employer may experience a change in its H-1B dependency status due to changes in the ratio of H-1B nonimmigrant to U.S. workers in its workforce. An employer who becomes H-1B dependent in such circumstance is not required to file new LCA(s) unless it seeks to hire new H-1B nonimmigrant workers or to extend the status of existing H-1B workers.

Conversely, an employer who changes from H-1B dependent to non–H-1B dependent status is required to perform a full calculation of its status, and retain it in their records. If the employer seeks to hire new H-1B nonimmigrants or extend the status of existing      H-1B nonimmigrants, the employer shall either file new LCAs reflecting its non-dependent status, or utilize the existing certified LCAs, in which case it will continue to be bound by the dependent-employer attestations.

Defining the H-1B “Willful Violator” Employer

“Willful violator” or “willful violator employer” is an employer that meets all of the following standards:

(1)   A finding of violation by the employer is entered in either of the following two types of enforcement proceedings:

1. a)A Department of Labor proceeding under the Immigration and Nationality Act (INA) § 212(n)(2); 8 U.S.C. § 1182(n)(2)(C); or

1. b)A Department of Justice proceeding under INA § 212(n)(5); 8 U.S.C.§ 1182(n)(5).

(2)   The agency finds that the employer has committed either a willful failure or a misrepresentation of a material fact during the five-year period preceding the filing of the LCA; and

(3)   The agency's finding is entered on or after October 21, 1998.

Additional attestations and compliance are required under any LCA filed by an employer within five years of a willful violation finding. The only exception is for an LCA filed for and used exclusively for exempt H-1B workers.

Additional Required LCA Attestations

H-1B dependent employers and “willful violator” employers must attest to the following three additional elements which address non-displacement and recruitment of U.S. workers:

(1)   The employer will not displace any similarly employed U.S. worker within 90 days before or after applying for H-1B status, or an extension of status, for any H-1B worker;

A U.S. worker is “displaced” from a job when the employer lays off the U.S. worker from a job that is essentially equivalent to the job for which an H-1B worker is sought. It applies to both an employer's own workforce as well as a secondary employer with which an H-1B worker might be placed. It should be noted that an H-1B employer can be assessed a civil money penalty up to $35,000 for a willful violation.

(2)   The employer will not place any H-1B worker employed pursuant to the LCA at the worksite of another employer unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H-1B worker; and

(3)   The employer, before applying for H-1B status for any alien worker pursuant to an H-1B LCA, took good faith steps to recruit U.S. workers for the job for which the alien worker is sought, at wages at least equal to those offered to the H-1B worker. Also, the employer will offer the job to any U.S. worker who applies and is equally or better qualified than the H-1B worker. This attestation does not apply if the H-1B worker is a "priority worker" (defined as a person with extraordinary ability, or outstanding professors or researchers, or certain multi-national executives or managers) within the meaning of Section 203(b)(1)(A), (B), or (C) of the INA.

The term “recruitment” means the process by which an employer seeks to contact or to attract the attention of any person who may apply for employment. Recruitment includes soliciting, receiving, considering, and reviewing applications. In conducting recruitment of U.S. workers, an employer must apply selection criteria which are legitimate criteria, meaning criteria which are legally recognized and do not violate any applicable laws; relevant to the job; and normal and customary to the type of job involved. An employer which recruits in good faith must offer fair and nondiscriminatory opportunities for employment to U.S. workers. H-1B workers must not be favored over U.S. workers. The Wage and Hour Division of the U.S. Department of Labor enforces the recruitment requirements for H-1B dependent and willful violator employers.

The term “industry” means the set of employers which primarily compete for the same types of workers that are being sought under an LCA. An employer may determine industry-wide recruiting standards by utilizing sources such as trade organization surveys, studies by consultant groups, or reports/statements from trade organizations. The recruitment must utilize methods and media which are normal, common, or prevailing in the industry, and have been shown to successfully recruit U.S. workers.

Additionally, the employer's recruitment must include as a minimum both internal and external recruitment; and at least some active recruitment, whether internal such as training the employer's U.S. workers for the positions or external such as utilizing recruitment agencies or college placement services.

After the Department of Labor certifies the LCA, the employer will apply to the U.S. Citizenship and Immigration Services (USCIS) for approval to employ an alien worker under H-1B status so that alien workers may be hired. Please note that there are additional requirements for the Public Access Files of H-1B Dependent and Willful Violator employers. These additional requirements are detailed in Chapter 4: Maintaining the Public Access File. 

Willful violators are subject to random investigations by the Department of Labor for a period of up to five years from the date that the employer is determined to be a willful violator. The Wage and Hour Division maintains a current list of all H-1B willful violators.

Defining the “Exempt” H-1B Nonimmigrant Worker

An exempt H-1B nonimmigrant worker is one who receives at least $60,000 annual wages or has attained a master's or higher degree (or its equivalent) in a specialty related to the H-1B employment. Employer contributions or costs for benefits such as health insurance, life insurance, and pension plans cannot be counted toward the $60,000; nor can the required wages for “exempt” status be decreased or pro-rated based on an employee's part-time work schedule.

H-1B dependent and “willful violator” employers which employ only exempt H-1B workers on a Labor Condition Application (LCA) have the advantage of being relieved from the additional attestations and compliance obligations.

Chapter 3: Filing the LCA

Prevailing Wage Determination

Before filing an H-1B petition, an employer must get the U.S. Department of Labor (DOL) to certify an LCA. The LCA establishes that the H-1B worker will be paid a wage equal to or greater than the prevailing wage for similarly employed workers or the actual wage, whichever is higher. The prevailing wage for a unionized position is determined by the collective bargaining agreement.

For all non-union jobs, an employer can either request a Prevailing Wage Determination (PWD) from the DOL, or it can make a good-faith effort to identify the appropriate prevailing wage from a published salary survey that meets the DOL's criteria. The advantage of getting the wage directly from the government is that the employer is given safe harbor meaning that they cannot be found later to have been underpaying the H-1B worker, whereas if an employer identifies a prevailing wage on its own, no safe harbor is provided.

To request a PWD, an employer completes and submits form ETA-9141 using the iCERT online visa portal administered by the DOL. It takes approximately 30 to 60 days to receive the PWD from the DOL. Once a PWD has been issued by the DOL, the employer must use that prevailing wage on the LCA and the employee must be paid at least that amount (or as much as that paid to the other similarly employed workers at that location, whichever is higher). An employer may request the DOL to reconsider a particular PWD if it feels the wrong occupational title or wage level was chosen, but ultimately, the employer must use the DOL-determined prevailing wage for the LCA.

Because of the additional time it takes, and the possible ramifications of an erroneous PWD being issued, many employers choose to identify the prevailing wage using a salary survey that meets the DOL's criteria rather than requesting a PWD from the DOL. The Occupational Employment Statistics (OES) wage library, the database that the DOL uses to determine PWDs, is available online and many employers use it to identify appropriate prevailing wages for an LCA. Each occupational title listed in the OES wage library has 4 wage levels listed depending on the level of skill required to perform the job. Problems can arise when employers don't understand how to correctly identify the appropriate occupational title and/or wage level from the OES wage library.

Many modern job titles (IT Consultant, Business Analyst, etc) are not listed in the OES online wage library, so an employer must choose an occupational title from the list of those included that matches the job based on the job duties for the position. An employer can use the key-word search function to find occupational titles that are close and then compare the job duties for the proposed position to those listed for the various occupational titles included in the OES wage library (Computer Programmer, Computer Systems Analyst, etc) to identify the most appropriate occupation from which to choose the wage.

A detailed explanation of the proper level of wage to use for the prevailing wage is available. The process involves determining the industry standard minimum requirements for a particular job based on its Specific Vocational Preparation (SVP) level, and then comparing the employer's minimum requirements for the proposed position to determine how much, if any, they exceed the industry standard. For example, if a bachelor's degree is normally required for entry into an occupation, the prevailing wage for a job offer in that occupation which requires a master's degree would be the Level 2 wage. If the employer requires a master's degree plus one year of experience for a job that normally only requires a bachelor's degree, the Level 3 wage would be the appropriate prevailing wage.

Where a master's degree is normally required for entry into the occupation, the prevailing wage for a job offer in that occupation that requires a master's degree would be Level 1, unless there are other special requirements contained in the job offer or components thereof that require skills that are at Level 2. The process of identifying a prevailing wage for an LCA can be complicated. Employers should utilize the services of an experienced immigration attorney who has an in-depth familiarity with SVP levels and skill level calculations to help identify the appropriate prevailing wage for an LCA in order to ensure compliance with the DOL regulations.

The actual wage is the wage paid by the employer to other employees with similar experience, qualifications, education, job responsibility, job function, specialized knowledge and other legitimate business factors as the H-1B employment. The employer is required to pay the higher of the prevailing wage or the actual wage. Where an employer's pay system provides for adjustments during the time period of the LCA, such as cost of living increases, or the employee moves to a more advanced level within the same occupation, such adjustments must be provided to similarly employed H-1B workers, unless the prevailing wage is higher than the actual wage.

Place of Employment

The term “place of employment” means the worksite or physical location where an H-1B nonimmigrant worker actually performs his or her work. The LCA must be filed for the geographic area where an employer intends an H-1B worker to be employed. The LCA will apply to any worksites within this “area of employment,” and thus will control the prevailing wage determination, posting, and other worksite-related obligations of an employer. Certain temporary work performed by an H-1B worker, however, does not require an LCA for that geographic area so long as the work meets the circumstances discussed below.

A location where an H-1B worker temporarily performs job duties will not be considered a worksite and no new LCA needs to be filed when the worker travels to a location a) for employee developmental activity or b) to fulfill the requirements of a particular job function. With regard to the latter activity, each of the following conditions must be met if the employer chooses to use an existing LCA – one that applies to a different geographic area:

(1)   The H-1B worker's presence at the different location is casual and on a short-term basis (i.e., any single visit does not exceed five (5) consecutive workdays for any worker who travels frequently or ten (10) workdays for any worker who travels occasionally);

(2)   The H-1B worker is not at the location as a “strikebreaker”; and

(3)   The nature and duration of the H-1B worker's job function (rather than the nature of the employer's business) mandates his or her short-time presence at a different location. For example, in the following situations, an employer could choose to rely on an existing LCA: a Computer Engineer is sent out to customer locations to “troubleshoot” complaints regarding software malfunctions; a Sales Representative makes calls on prospective customers or established customers within a “home office” sales territory; or a Physical Therapist provides services to patients in their homes within a geographic area of employment.

The employer must have an LCA on file for each place of employment, with the exception of the short-term placement option. By filing the LCA, the employer establishes the prevailing wage for the worksite, provides notice to workers, and specifies the scope of the strike/lockout prohibition.

The employer need not obtain a new LCA for another worksite within the geographic area of intended employment where the employer already has an existing LCA for that area. However, while the prevailing wage on the existing LCA applies to any worksite within the geographic area of intended employment, the notice to workers must be posted at each individual worksite, and the strike/lockout prohibition also applies to each individual worksite.

The U.S. Department of Labor's Wage and Hour Division would seriously question any situation which appears to be contrived or abusive in determining the H-1B worker's geographic “place of employment.” The Wage and Hour Division would seriously question any situation where the H-1B worker's purported “place of employment” is a location other than where the worker spends most of his or her work time, or where the purported geographic “area of employment” does not include the location where the worker spends most of his or her work time.

Short-Term Placement Option

An employer who needs to temporarily place an H-1B nonimmigrant worker in a place of employment that is not listed on an existing certified LCA may do so under the short-term placement provision without filing a new LCA for the temporary geographic area of employment. The short-term placement option is not available for a geographic location where the employer already has an LCA on file. Further, the short-term placement option may only be used for an H-1B nonimmigrant worker who is already in the United States and working for the employer.

For every day the H-1B worker is placed in the new undesignated area of employment, the employer must pay that worker:

(1)   The required wage rate applicable to the permanent worksite on the supporting LCA;

(2)   The actual cost of lodging for each workday and non-workday; and

(3)   The actual cost of travel, meals, and incidental or miscellaneous expenses for each workday and non-workday.

An employer may place an H-1B worker in short-term placement only if all of the following conditions are met:

(1)   There is no strike/lockout in progress in the H-1B worker's occupation at the short-term location;

(2)   The employer does not already have an LCA on file for the geographic area of employment; and

(3)   Placement of the individual H-1B worker at any site in an area of employment does not exceed 30 workdays within a one-year period. Such placement may be extended for an additional 30 workdays, but for no more than 60 workdays, in a one year period, where the employer is able to show that the H-1B nonimmigrant maintains ties to the home worksite and the worker spends a substantial amount of time at the permanent worksite.

A workday is any day in which an H-1B worker performs any work – at least one hour – at any worksite within the geographic area of employment.

After 30 workdays, or 60 workdays if applicable, if the employer still has no LCA on file for the geographic area of employment, the employer must remove the H-1B worker from the temporary worksite. If any worker exceeds the 30- 60- day work limits, the employer may no longer use the short-term placement option in that geographic area of employment.

The employer may, at any time, file a new LCA for the new geographic area of employment and perform all actions required in connection with that filing. Once the LCA is certified, the short-term placement restrictions no longer apply. If the location worksite changes and is outside the geographic area designated in the existing LCA and the work does not constitute short-term placement under the guidelines, the employer must obtain an LCA for the new location and pay the H-1B worker the prevailing wage of that location.

Chapter 4: Maintaining the Public Access File  

Compliance under the Labor Condition Application (LCA) requires that the Public Access File, also known as the public inspection file, must be available to the public within one working day after the date on which the Labor Condition Application (LCA) is filed with the Department of Labor (DOL). Any member of the public may request access to the file. Access is not limited to “aggrieved parties” or “interested parties.” The employer must make the file available to the requester within one working day of the request.

The Public Access File may be kept at the employer's principal place of business or at the actual place of employment for the H-1B worker. Some employers may choose to maintain a separate Public Access File for each H-1B worker admitted under an LCA, while other employers may opt to keep all of their LCAs and related documentation in one Public Access File. It is good practice to maintain the Public Access File regarding an H-1B worker separate from that worker's personnel file. By maintaining Public Access Files separately for each H-1B worker - or at a minimum, each LCA when multiple workers are included in the same LCA - the employer is able to provide access limited to those files actually requested by a member of the public, the DOL or U.S. Immigration and Customs Enforcement (ICE).

Public Access File Requirements

The Public Access File must include the following elements:

(1)   A copy of the completed LCA. If the LCA is submitted by facsimile transmission, the original signed version must be maintained by the employer but it need not be included in the Public Access File. Once the LCA is returned with the DOL certification, the employer may want to replace the copy already in the file with a copy of the certified version of the LCA.

(2)   A statement of the wage rate to be paid to the H-1B worker or workers admitted under the LCA. The LCA may include the initial wage rate to be paid the H-1B worker, and is sufficient initial documentation of the wage rate in that case. If the LCA contains a wage range, however, in the case of a single H-1B nonimmigrant or in cases involving multiple H-1B nonimmigrants included on the same LCA, the employer should include a separate statement listing the specific wage rate to be paid to each H-1B nonimmigrant admitted under the LCA. In addition, the wage rate information must be current for every H-1B nonimmigrant admitted under an LCA.

(3)   An “actual wage” pay system memorandum. The DOL rules require that the Public Access File contain a “full, clear explanation of the system” that the employer used to set the “actual wage” paid to workers in the occupation for which the LCA is filed. The explanation must be in the form of a “memorandum summarizing the system or a copy of the employer's pay system or scale.”   

      Actual wage is the wage paid by the employer to all individuals with similar experience and qualifications for the specific employment in question. In evaluating “similar experience and qualifications” many factors such as experience, qualifications and education, etc, may be taken into account.

            DOL Enforcement Policy: Experience with DOL enforcement efforts shows that the DOL expects detailed information, and that without ample justification of discrepancies between experience and education levels and wage rates, it will suspect the worst of the employer's intentions. Particularly if the H-1B worker's wage rate within the pool places him or her beneath any of the U.S. workers, a thorough explanation of the factors leading to that wage rate is imperative. An employer should remember that the more it does by way of analysis at the         pre-filing stage, and documents that analysis for the LCA file, the less likely it will be that the DOL will find evidence of willfulness in a failure to meet the wage attestation.

(4)   A copy of prevailing wage documentation. The DOL rules require the Public Access File to contain a copy of the documentation used to establish the prevailing wage. The rules elaborate that “a general description of the source and methodology is all that is required to be made available for public examination.”  In particular, the “underlying individual wage data” used to determine the prevailing wage rate need not be included in the Public Access File, but must be available to DOL investigators in an enforcement action.

What the employer includes in the Public Access File depends on the source for its prevailing wage determination. If the employer relies on a State Employment Security Agency (SESA) determination, a copy of the determination should be included. If the employer uses an “independent authoritative source” or a “legitimate source of information,” it may want to include copies of the title page of the survey and the extract from the survey containing the prevailing wage.   The employer should prepare an explanatory memorandum to go with the survey to explain its choice of occupational classification within the survey. Choice of occupational classification becomes a major issue when the job titles of the employer and survey differ and it appears that the employer has classified the job at a lower pay level. Information concerning the methodology used should be included in the explanatory memorandum as well as a statement concerning the lack of workers in the area of intended employment necessitating the expansion of the area surveyed if applicable.

(5)   Documentation regarding offer of benefits to H-1B workers. The Public Access File must include a summary of the benefits offered to U.S. workers in the same occupation as the H-1B workers. A statement explaining how employees are differentiated for benefit purposes when not all employees are offered or receive the same benefits must also be included in the file. Finally, the file must include note memorializing any workers left on “home country” benefits, if applicable. 

(6)    A copy of the notification documents.The Public Access File must also include documentation that the employer has met the requirement that it provide notice of the LCA filing to the relevant bargaining representative, or to its own employees in cases in which there is no bargaining representative for the occupational classification at the place of employment.

In a case involving a bargaining representative, the file must include a copy of the dated notice given to the bargaining representative, which must include the information specified in 20 C.F.R. §655.734(b)(1)(i). The file must also include the name and address of the bargaining representative to whom the notice was provided.

In a case without a bargaining representative, the file must include a copy of the actual notice physically posted in two locations at each place of employment listed on the LCA or posted electronically, e.g., through the firm's intranet or      e-mail system. The notice must include the information specified in 20 C.F.R. §655.734(b)(1)(ii). The file must also include the dates when each notice was posted, the locations where each notice was posted, and the physical place within the location where each notice was posted.

The employer's notice may be an exact copy of the LCA, or it may be a statement including the information listed in the regulatory sections cited above. 

(7)   Evidence of notification to the H-1B nonimmigrant. The regulations impose a requirement on employers to provide an H-1B nonimmigrant admitted pursuant to an LCA with a copy of the certified LCA no later than the date he or she reports to work. Evidence that this requirement has been fulfilled must be placed in the file.

(8)   Sworn statement regarding assumption of LCA obligations in corporate restructuring situations. When the employer undergoes a change in corporate structure and chooses to assume the LCA obligations of the previous employer, include the following in the Public Access File: a) a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity; b) the employer identification number (EIN) of the new entity; c) a list of each affected LCA and its date of certification; and d) a description of the actual wage system of the new employing entity. The H-1B worker must remain in the same location and continue to perform the same job duties if he or she is to remain on the old LCA. Remember that the old LCAs cannot be used to support petitions or extensions filed by the new entity even when it agrees to assume the obligations under those filings. As a result, the entity will need to file a new LCA in order to file new petitions or extensions on behalf of H-1B workers.

A change in the employer's H-1B dependency status which results from a change in corporate structure has no effect on the employer's obligations with respect to its current H-1B workers. However the new employing entity must comply with additional H-1B dependent employer requirements in the event that such entity seeks to hire new H-1B nonimmigrant workers or to extend the status of existing H-1B workers.

(9)   List of entities comprising “single employer” when employer uses definition of “single employer” to determine H-1B dependency.  When the employer utilized the definition of “single employer” to determine its H-1B dependency status, the employer must prepare a list of any entities included as part of the single employer in making the determination. Under ACWIA, an employer may then use the definition of “single employer” in the Internal Revenue Code (IRC) to make a calculation of its H-1B dependency taking into account the number of workers employed by related business entities in the United States. ACWIA provides that any group treated as a single employer under Internal Revenue Code § 414(b), (c), (m), or (o) is to be treated as a single employer for purposes of determining H-1B dependency.

Additional Public Access File Requirements for H-1B-Dependent Employers & Willful Violators

H-1B dependent employers and “willful violators” are subject to additional attestations relating to the displacement and recruitment of U.S. workers, and must retain the following in the Public Access File:

(1)   List of “exempt” H-1B employees when LCA will be used to support only “exempt” employees. When the employer is an H-1B dependent employer or a “willful violator,” and indicates on the LCA(s) that only “exempt” H-1B nonimmigrants will be employed, a list of such “exempt” H-1B workers must be included in the Public Access File. If an LCA claiming exempt status for its employees is used to support a petition or extension of status for a non-exempt employee, the employer will be found to have violated the non-displacement and recruitment requirements. 

(2)   Recruitment documentation. The employer must retain documentation of the recruiting methods used, including the places and dates of the advertisements and postings or other recruitment methods used, the content of the advertisements and postings, and the compensation terms if such are not included in the content of the advertisements and postings. The employer must also retain documentation the employer received or prepared concerning the treatment of applicants, such as copies of applications and related documents, test papers, rating forms, records regarding interview, and records of job offers and applicants' responses. This documentation must relate to the period prior to the filing of the LCA. In addition, each time the employer files a petition or extension supported by the LCA, the employer will need to update the file to include information regarding its recruitment prior to the filing of the petition or extension.

(3)   Information regarding secondary displacement. If the employer placed any employees with other employers, documentation must be retained concerning how they satisfied the requirements that they make inquiries to other employers about the displacement of U.S. workers. Normally, this documentation will consist of the written assurance from the secondary employer, a note in the file contemporaneous with oral assurances received from secondary employer, and contract with secondary employer containing displacement clause. Evidence of further inquiries may be necessary if the employer has information available to it that lay-offs may have occurred at the secondary worksite.

(4)   Information regarding departures of U.S. workers. The employer is required to retain all records the employer created or received concerning the circumstances under which a U.S. worker, in the same locality and same occupation as any       H-1B worker hired, left its employ in the period of 90 days after the filing date of the employer's petition for the H-1B worker. The employer must retain at least the following documents:

1. a)The employee's name, last-known mailing address, occupational title and job description;

1. b)Any documentation concerning the employee's experience and qualifications, and principal assignments;

1. c)All documents concerning the departure of the employee, such as notification by the employer of termination of employment prepared by the employer or the employee, and evaluations of the employee's job performance; and

1. d)A record of the terms of any offers of similar employment to such U.S. workers and the employee's response to the job offer.

Not for Public Inspection

The employer must be careful not to include the following documents in the Public Access File, even though they must be made available to DOL investigators “upon request.” 

(1)   Records showing the wage rate for all other employees for the specific employment in question at the place of employment.This documentation must be maintained for all such employees beginning with the date the LCA was filed and continuing throughout the employment period. This documentation is basically the payroll records for the employees in the same job at the place of employment, and must include a) the employee's full name; b) the employee's home address;  c) the employee's occupation; d) the employee's rate of pay; e) the hours worked each day and each week by the employee if the employee is paid on other than a salary basis (e.g., on an hourly rate) or with respect to part-time H-1B workers;   f) the total additions and deductions for each pay period; and g) the total wages paid each pay period, the date of pay, and the pay period covered by the payment. The coverage of this documentation requirement includes all other employees in the same job and not just employees in the same job with experience and qualifications similar to the H-1B nonimmigrant.

(2)   Data used to establish the actual wage rate for the H-1B nonimmigrants.This information is the underlying data used to prepare the actual wage memorandum in the Public Access File. The data must show how the wages set for the H-1B nonimmigrants relate to the wages paid to all other employees with similar experience and qualifications for the specific employment in question at the place of employment. The employer may prepare a more detailed version of the actual wage memorandum including the actual wage data for all comparable employees in the same job to establish how the employer's pay system works and how it was used to set the H-1B nonimmigrant's wages. When adjustments are made in the pay system during the validity period of the LCA, the employer must also retain documentation explaining the adjustments and showing that after the adjustments were made, the H-1B nonimmigrant continues to receive at least the greater of the prevailing wage or the actual wage paid to similarly employed workers.

(3)   Documentation supporting the employer's prevailing wage determination. In the Public Access File, the employer must include documentation giving a general description of the source and methodology used in reaching its prevailing wage determination. In many cases, the public inspection documentation will encompass all of the employer's prevailing wage evidence, e.g., the prevailing wage finding from a SESA. In cases involving other prevailing wage surveys, however, the employer is not required to include the entire survey or the raw data from the survey in the Public Access File. This documentation must be maintained, however, for DOL inspection upon request.

(4)   Documentation on offer of benefits. Documentation of the employer's offer of benefits to the H-1B worker should include: a) copies of documents given to employees describing the benefits offered to employees and rules for eligibility and participation; b) documents describing any rules the employer has for differentiating among employees with regard to benefits; c) evidence as to the benefits chosen by and provided to employees; and d) evidence of any “home country” benefit plans if the H-1B worker remained on such a plan.

(5)   H-1B dependency calculation.With regard to employers that claim that they are not H-1B dependent but were required to make full calculation of their H-1B dependency under the DOL rules, the dated copy of such calculation must be retained. An employer claiming that it is no longer H-1B dependent after an LCA filing as a result of change in its workforce must also retain a copy of its calculation.

Chapter 5: H-1B Compliance Pitfalls… Where Employers Go Wrong

H-1B Wage

The employer must pay H-1B workers at minimum the “required” wage which is the higher of the prevailing wage or the employer's actual wage for similarly employed workers.

The prevailing wage rate is set for the occupational classification in the geographical area of employment by a union contract, if applicable, or according to the weighted average of wages paid to similarly employed workers in the geographic area of employment. A common prevailing wage source is the State Workforce Agency operating in each U.S. state.

An H-1B worker's wage can be hourly or salaried. The guaranteed minimum number of hours to be paid to the H-1B worker for all pay periods is the number of hours that the employer reports in Part 5 of the Form I-129, Petition for Nonimmigrant Worker.

The employer must pay the guaranteed minimum hours unless the H-1B worker is unavailable for work due to non-work related factors. The Department of Labor's Wage and Hour Division enforces the H-1B wage provisions and has the authority to order an employer to pay the required wage.

H-1B Employer Must Pay for Nonproductive Time: No Benching!

Employers are required to pay workers for all nonproductive time resulting from conditions related to employment including lack of assigned work, lack of a permit, or time incurred for training or studying for a licensing exam. Payment is not required for nonproductive time due to reasons not related to employment such as a worker's voluntary absence or hospitalization. Please note that employers are obligated to comply with the Immigration and Nationality Act and other statutes relating to employment such as the Family and Medical Leave Act.

The DOL and ICE are fully aware of the common practice of “benching” employees during periods between job assignments. This practice is not allowed under the H-1B program, and if audited, employers should expect to have to pay back wages to “benched” employees, and face the possibility of steep penalties and debarment from the program.

Nonproductive pay requirements begin at the earliest of the following applicable events: a) the H-1B worker first makes them self available for work or comes under control of the employer including reporting for orientation or studying for licensing exam; b) no later than 30 days after H-1B worker is admitted into U.S. pursuant to H-1B petition;     c) no later than 60 days after the H-1B worker becomes eligible to work for the employer based on the approval date on Form I-797 Notice of Action; or d) for an H-1B worker already in the U.S., on the date of filing the Petition for Nonimmigrant Worker by sponsoring employer under portability provisions.

The employer is required to pay the H-1B worker's wage until there has been a bona fide termination of the employment relationship. Regulations require the employer to notify the USCIS that the employment relationship has been terminated so that the H-1B petition is canceled. In most circumstances, the employer is required to provide the nonimmigrant worker with payment for transportation home.

Rules Concerning Pay Deductions

Under no circumstances can an H-1B worker be required to pay the following:

(1)   Any penalty as defined by state law for worker's failure to complete the full employment period;

(2)   Any part or portion of the statutory Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS) petition filing or fraud prevention fees; and/or

(3)   Any deduction for the employer's business expenses that would reduce an H-1B worker's pay below the required wage rate, including: expenses or attorneys' fees related to the filing of the Labor Condition Application and/or H-1B petition; tools and equipment; and travel expenses while on employer's business.

Deductions, other than those excluded above, may be made, even if they reduce the H-1B worker's pay below the required wage rate, only when the deductions satisfy one of these three categories:

(1)   Required by law, such as the withholding of income taxes; or

(2)   Reasonable and customary such as union dues or insurance premiums; or

(3)   Voluntarily authorized by the H-1B worker, under the following standards:

1. a)There is a voluntary, written authorization by the employee;

1. b)For a matter principally for the benefit of the employee, such as reimbursement for travel to the United States or payment for food and lodging not incurred while traveling on the employer's business;

1. c)For an amount that does not exceed the fair market value or the actual cost of the matter covered; and

1. d)The amount does not exceed the limits for garnishments set by the Consumer Credit Protection Act.

Rules Concerning Offered Benefits

An employer must offer H-1B workers benefits on the same basis, and according to the same criteria, as the employer provides to similarly employed U.S. workers.

No benefits need be offered to an H-1B worker placed in the U.S. for 90 or fewer continuous days if the worker remains on the home country payroll and continues to receive home country benefits without interruption.

“Whistleblower” Protections

The H-1B employer is prohibited from retaliating against any U.S. or H-1B worker – current or former employee, or job applicant – because the employee has disclosed any information to the employer or any other person or entity about an employer's alleged failure to comply with any of the H-1B provisions, or because the employee has cooperated in an enforcement activity.

Employers are specifically prohibited from intimidating, threatening, restraining, coercing, blacklisting, discharging, or discriminating in any other manner against a worker who has exercised his or her rights under the H-1B program. Employers who violate these provisions are subject to penalties up to $5,000 per violation, and a two-year debarment.

The Administrator of the DOL Wage and Hour Division may impose such other administrative remedies as the Administrator determines to be appropriate, including, but not limited to, reinstatement of workers who were discriminated against, reinstatement of displaced U.S. workers, back wages to workers who have been displaced or whose employment has been terminated in violation of these provisions, or other appropriate legal or equitable remedies.

Chapter 7: Audit Overview

DOL's Wage and Hour Division's Enforcement Authority

When authorized to investigate, the Department of Labor Employment Standards Administration's Wage and Hour Division is responsible for ensuring that workers receive wages defined on the Labor Condition Application (LCA) and are working in the occupation and at the specified location. The Wage and Hour Division can initiate an     H-1B-related investigation in response to one of the four following situations:

(1)   A complaint is filed by an aggrieved individual or organization; or

(2)   The Wage and Hour Division receives some other specific credible information from a reliable source indicating that the employer has failed to meet LCA conditions; or

(3)   The Secretary of Labor has found that an employer, within the last five years, has committed a willful failure to meet a condition of the LCA or willfully misrepresented a material fact in the LCA; or

(4)   The Secretary of Labor has reasonable cause to believe the employer is non-compliant.

Introduction to the H-1B Audit

An H-1B Audit is conducted by the DOL's Wage and Hour Division to find out whether an H-1B employer is in compliance with the existing H-1B laws and regulations. The Labor or H-1B Audit could arise from many sources including but not limited to Employee Complaint, U.S. Embassy Referral, or Random Audit.

In most instances, the employer will receive written notification approximately one week prior to the scheduled start of an H-1B Audit. Please be aware that there may be circumstances where no advance H-1B Audit notification will be provided to an employer. Increasingly, DOL Investigators are arriving unannounced at an employers' place of business or the LCA worksite location.

Preparing the supporting documentation for the Labor Condition Application (LCA) is the core of the employer's responsibility. The employer must be careful to meet the DOL requirements for the content of that documentation and for its retention and availability.  The DOL recognizes two types of supporting documentation: (1) documentation which must be made available in a Public Access File, also known as a public inspection file, within one working day after the date of filing the LCA with the DOL, and                     (2) documentation which must be made available to DOL investigators “upon request.” It is important for employers to distinguish between the two types of documentation, and put into the Public Access File only the documentation required to be there by regulation.

An employer undergoing an H-1B Audit should expect additional documents and information to be requested through the course of the investigation, and should be prepared to provide the materials in a timely fashion. There is an expectation of voluntary compliance with an H-1B Audit, and it will behoove the employer to proactively take any steps required to comply with all requests. It is important that an employer engage experienced legal counsel to ensure appropriate compliance.

Providing a comfortable environment for an Investigator to conduct the audit, as well as all requested materials in an organized and timely fashion, will help demonstrate an employer's good-faith intention toward H-1B program compliance. Effective March 8, 2005, an H-1B employer will be considered in compliance notwithstanding a technical or procedural failure if such employer:

(1)   Makes a good faith attempt to comply;

(2)   Voluntarily corrects violations within 10 business days of being advised by an enforcement authority;  

(3)   Has not engaged in a pattern or practice of willful violations; and

(4)   For prevailing wage violations, can establish that the wage was calculated consistent with recognized industry standards and practices.

There are several practical actions that any employer facing an H-1B Audit should take, including:

(1)   Inform all staff that they are to be courteous and professional with the Investigator;

(2)   Designate an Audit Liaison, or 1 or 2 senior employees or an attorney, to be responsible for all contact and communication between the employer and Investigator, and to facilitate compliance;

(3)   Provide the Investigator a dedicated workspace;

(4)   Provide the Investigator access to a copy machine; and

(5)   Have legal counsel prepare any employee prior to a requested interview, and have counsel attend the interview.

Repercussions for Noncompliance

When violations are found, the Administrator of the Department of Labor's Wage and Hour Division may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation.Other remedies such as the payment of back wages may also be imposed. Employers found to have committed certain violations may also be denied access to the H-1B and other immigrant programs for a period of at least one year – this penalty is called “debarment.”

Within 15 days of the date of the determination, any interested party may request a hearing on the Wage and Hour Administrator's determination before an Administrative Law Judge. Within 30 days of the decision by an Administrative Law Judge, an interested party may request a review of the decision by the Department's Administrative Review Board.