H-1B EMPLOYER COMPLIANCE TIPS FOR LCA AND PAF AUDITS
Employers who hire H-1B workers are subject to many regulatory obligations. For example, the employer must continue to pay the H- IB worker the required wage rate throughout the entirety of the period of validity of the LCA. If the required wage rate is based on the prevailing wage, the employer need not take further action during the LCA validity period. However, if the required wage rate is based on the actual wage, the employer must assure that the H-1B worker will continue to be paid the actual wage through the LCA validity. Additionally, the employer must also pay the employee any salary increases such as cost of living increases or performances raises which the H-1B worker merits and notify the DOL within three days of a strike or lockout during the validity period of the LCA.
The guidelines for employers in situations in which the H-1B employee travels to locations other than the worksite listed in the LCA are detailed. For additional work sites within an area of employment listed on the LCA, the general rule is that the employer must meet with LCA notice requirement (notice to bargaining representative or posting of two LA notices). In the event that the worksite is outside of the area of employment listed on the original LCA, the employer must file a new LCA noting the new work site and must also make all necessary changes in support of the LCA, such as obtaining a prevailing wage determination and meeting the notice requirements. Additionally, an amended H-IB petition must also be filed with the USCIS in the event that the employee will work in an area outside of that which has already been approved in the LCA.
PUBLIC ACCESS FILE (PAF) AUDITS
The Wage and Hour Division (WHD) of the Employment Standards Administration (ESA) enforces the LA requirement. The WHD has the authority to investigate complaints and to determine employer compliance with CA regulations. The employer is tasked with keeping certain records available in the event that the WHD should decide to audit them. Common items that are requested in the event of a PAF audit by the WHD include:
- the original signed and certified Forms ETA 9035E, all accompanying LCAs;
- copies of H-1B petitions filed - including the LCA, I-129, support letters, G-28's, and approval notices;
- names, addresses, and phone numbers of all H-1B workers;
- social security numbers of H-IB workers;
- date that all H-1B workers arrived in the U.S.; date that the H-1B commenced work, and the date that the H-1B was placed on payroll; dates of any unpaid periods or reduced pay periods;
- each worksite location by city and state and periods of employment at each site;
- any subsequent petitions filed on behalf of H-1B workers (extensions, amendments);
- date of H-1B worker termination (if applicable), including date of termination notice to USCIS;
- liquidated damages or penalties sough or collected by the employer, including relevant contracts and lawsuits:
- payroll records for all employees in the same occupation as the H-1B who are/were employed during the specified time period and location as stated on the LCAs;
- copies of the documents used to establish: the prevailing wage rate, employer's actual wage system, and documentation establishing that each LCA was properly posted at the pertinent locations including the client site.
- evidence that the H- 1B nonimmigrant has received a copy of the certified LCA.
- documentation of the employer's offer of benefits to the H-1B worker, including documents given to employees describing eligibility and details of benefits.