An H-1B audit is a review conducted by the U.S. Department of Labor (DOL) or U.S. Citizenship and Immigration Services (USCIS) to ensure that employers hiring H-1B workers comply with legal and regulatory requirements. These audits examine whether the employer is meeting wage requirements, maintaining appropriate records, and ensuring that working conditions are consistent with H-1B program rules. A failed audit can lead to penalties, including fines, revocation of H-1B approvals, and even disqualification from future H-1B sponsorships.

Steps to Create an Internal H-1B Audit with Your Company's Immigration Counsel:

Conducting an internal H-1B audit proactively with your immigration counsel can help ensure compliance and reduce risks. Here's a step-by-step guide:

Engage Your Immigration Counsel Early: Start by consulting your immigration attorney to develop an audit plan tailored to your company's needs. Your counsel can guide you on the specific records to review, recent policy changes, and best practices for maintaining compliance.

Identify Key Areas for Review: Together with your counsel, identify the main areas of H-1B compliance. These typically include:

• Labor Condition Application (LCA) Compliance: Review wage and working condition commitments made in the LCA.
• Public Access Files (PAFs): Confirm that PAFs are properly maintained and contain all required documentation, such as the certified LCA, wage statements, and evidence of posting notices.
• Record-Keeping and Wage Payments: Check payroll records to ensure H-1B employees are paid the required wage and within the specified timelines.
• Employee Job Duties and Locations: Verify that H-1B employees are working in the locations and job roles listed in their petitions. For any changes, ensure proper amendments or updates were filed.

Review Public Access Files (PAFs): Conduct a thorough review of PAFs, ensuring they are complete and contain:

• The certified LCA
• Documentation showing wage calculations for each H-1B employee.
• Evidence that the LCA notice was posted or distributed electronically.
• Any additional required documents, including statements on employee benefits and records of correspondence with DOL.

Examine Payroll and Wage Records: 

Verify that your H-1B employees are paid the wage listed in their LCA, ensuring compliance with both minimum wage and prevailing wage requirements. Review payroll records for each H-1B worker to confirm accuracy and timeliness of payments, including overtime if applicable.

Verify Employee Work Locations and Job Duties:

Confirm that each H-1B employee is performing the job duties and working at the location(s) stated in the H-1B petition. For any substantial changes in job role or location, work with your immigration counsel to determine if an amended petition is necessary.

Document Internal Communication and Procedures:

Record each step of the audit process, and document any findings or issues. If you discover potential compliance issues, work with your counsel to resolve them and document corrective actions. This internal record can show a proactive approach to compliance in case of a government audit.

Train HR and Managers:

Conduct training for HR staff and managers who work with H-1B employees. This training should include best practices for compliance, identifying changes that might trigger a need for an amended petition, and ensuring that H-1B employees are aware of any limitations in their role.

Develop a Compliance Calendar and Set Regular Audits: