Is Your Company Prepared for an H-1B Audit?
Your Company's H-1B Audit must be conducted in regular intervals to make sure all provisions of LCA and I-129 are in compliance. We will evaluate your company's current H-1B compliance programs, including, but not limited to: Public Access Files, LCA Posting at the End Client Site, Non-Displacement Verification, and FDNS Site Visit-related issues.
The internal Audit report is only $599.
Get your company's internal H-1B Audit Now--Call us at (212) 571-6002 or Email us at Keshab@greencardmaker.com.
The Department of Labor is carefully watching H1-B employers, monitoring and scrutinizing if they are in compliance with the existing H-1B laws and regulations. Protect your company; conduct an internal H-1B Audit today!
For the Most Current LCA/H-1B Audit Activity Visit H-1B Audit News
The Law Office of Keshab Raj Seadie, PC, offers creative solutions to your immigration problems. Our firm has more than 10 years experience in solving H-1B Audit issues in areas such as Material Misrepresentation in LCAs, Improper Selection and Classification of Prevailing Wage Levels and Actual Wage, Benching and Nonpayment of Wages, Improper Public Access Files, Shortcomings in LCA Postings, I-9 Violations, Required Wage Documentation, Exempt H-1B Worker, Recruitment of US Workers, Level or Degree of Employer's Wrong-doing in Violations, Displacement of US Workers, Accepted H-1B Fees, Required to Pay Penalty for Ceasing Employment, and Failure to Comply with various provisions of LCA and H-1B laws and regulations.
We have extensive experience in H-1B and LCA Audits and litigation, as well as in most other areas of immigration law. Our firm will work diligently to solve your immigration problems. We have successfully represented H-1B Dependent employers in H-1B/LCA Audits throughout the US, including New York, New Jersey, Pennsylvania, Delaware, Connecticut, Massachusetts, Florida and California.
What is an H-1B Audit and how is it conducted?
An H-1B Audit is conducted by the Wage and Hour Division of the US Department of Labor (DOL) 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, US Embassy referral or random audit.
What penalties or sanctions can an H-1B employer face for non-compliance of the H-1B program requirements?
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. The Administrator may also impose other remedies, including payment of back wages to employees.
H-1B Audit Expectations & Etiquette:
In most instances, the Employer will receive written notification approximately one week prior to the scheduled start of an H-1B Audit. 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. Please be aware that there may be circumstances where no advance H-1B Audit notification will be provided to an Employer.
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. There is an expectation of voluntary compliance, and it will behoove the Employer to proactively take any steps required to comply with all requests. It is important that an Employer engage legal counsel to ensure appropriate compliance.
More Information for H-1B Employees
H-1B/LCA Case Law Summary
Back Wage Liability is for Actual Wage or Prevailing Wage, Whichever is Higher (07/30/09)
The ARB found meritless the Employer's argument in Vojtisek-Lom v. Clean Air Technologies International, Inc., that the ALJ erred in basing a back wage calculation on the higher amount actually paid to the Alien rather than the prevailing wage listed on the LCA. The ARB cited 8 U.S.C.A. § 1182(n)(1) and 20 C.F.R. § 655.731(a) for the proposition that "[t]he enforceable wage obligation for an employer of an H-1B nonimmigrant is the 'actual wage' or the 'prevailing wage,' whichever is greater." ARB No. 07-097, ALJ No. 2006-LCA-9.
Back Wages; Employer's Potential Liability is for Entire Period of Employment of the Alien, Including a Prior LCA (07/30/09)
In Vojtisek-Lom v. Clean Air Technologies International, Inc., the Respondent had engaged the Complainant (the H-1B worker) on two sequential LCAs. On appeal, the Respondent argued that because the Complainant had not filed a complaint within one year of the end of the first LCA, the ALJ erred in assessing back pay liability for periods covered by the first LCA. The ARB rejected this argument, agreeing with the ALJ's analysis that the LCA regulations make an employer liable for paying the required wage for the entire period of employment. ARB No. 07-097, ALJ No. 2006-LCA-9 (ARB July 30, 2009).
Failure to Object to Finding by Administrator Does Not Compel Waiver of De Nove Review by the ARB (07/30/09)
In Vojtisek-Lom v. Clean Air Technologies International, Inc., the Administrator argued that the Respondent waived its right to have the ARB review de novo the ALJ's back wage award for the same time period as the Administrator's earlier finding because the Respondent had not contested the Administrator's determination that it owed the back wages for that period. The ARB rejected this argument, finding no basis for not exercising its de novo review authority. ARB No. 07-097, ALJ No. 2006-LCA-9.
ALJ Finds "Benched" H-1B Employee Entitled to Unpaid Wages (05/14/09)
ALJ found that the employee did not need a SSN to begin work, only evidence of having applied for one, thus was in employment-related nonproductive status requiring payment. And that only pay reported to IRS met requirements as evidence of payment of prevailing wage. Benched H-1B employee is eligible for full salary in accordance with the approved LCA until the bonafide termination. The ALJ also stated that bonafide termination does not occur unless and until the USCIS receives a written request for termination. H-1B Employer does not have to pay for the duration of authorized unpaid leave of absence. Administrator, Wage & Hour Div. v. Itek Consulting, Inc. 2008-LCA-00046 (5/6/09).
ARB finds Employer Liable for Back Wages
DOL Administrative Review Board (ARB) finds Employer failed to report termination of the H-1B employee as required under H-1B program requirements. Employer is subsequently liable for back wages. The ARB asserts that employment indicated as full-time in the LCA and H-1B petition must be paid at the greater of the prevailing or actual wage rate. An employer cannot pay an H-1B worker any less, such as part-time wages for part-time work, without notifying USCIS. Administrator, Wage & Hour Div. v. Help Foundation of Omaha, Inc. et al. (ARB, 12/31/08)
ALJ finds Employer Liable for Back Wages and Retaliatory Termination
DOL Administrative Law Judge (ALJ) finds the Employer retaliated against the H-1B worker by terminating employment after worker complained to DOL. ALJ determines Employer must pay back wages, benefits and interest through the date of bona fide employment termination. Huang v. Ultimo Software Solutions, Inc., 2008-LCA-00011 (12/17/08).
ALJ looks to H-1B Required Wage
Administrative Law Judge (ALJ) utilizes LCA and prevailing wage in determining back pay. ALJ declines to consider a disputed agreement establishing a higher wage, as private contract disputes are outside the scope of the DOL's authority. Galal v. Z&A Infotek Corp., 2008-LCA-00010 (5/13/08).
ALJ finds Employer Liable for Payment of H-1B Filing and Premium Processing
Administrative Law Judge (ALJ) finds Employer liable for H-1B filing and premium processing fees; ordered to reimburse H-1B worker. Benching, termination, retaliation and other issues are discussed. Morales Toia v. Gardner Family Care Corp., 2007-LCA-00006 (4/25/08).
ARB addresses Statute of Limitations for Benching Claim
DOL Administrative Review Board (ARB) finds that the 12-month period in which a benching violation complaint may be filed begins when a bona fide termination takes place, rather than within 12 months of the first benching occurrence. Gupta v. Jain Software Consulting, Inc., 05-088 (ARB 3/30/07).
ARB finds Employment Termination and Rehiring Equivalent to Benching
DOL Administrative Review Board (ARB) finds that an Employer's termination of H-1B workers without notifying USCIS and later rehiring them constitutes unlawful benching. The violation is found to be willful. USDOL, Wage & Hour Division, ESA v. Pegasus Consulting Group, Inc. (ARB 6/30/05) .
MORE CASE RESULTS 2009
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MORE CASE RESULTS 2011
2011 LCA Decisions
2010 LCA Decisions
2009 LCA Decisions of Note