If you are an employer of a person who has an H-1B visa, you may face an audit and investigation by the U.S. Department of Labor (DOL). DOL is cracking down on any suspected abuse of the H-1B visa program and has kicked up investigations into high gear. Facing a DOL audit and investigation may be stressful and you may have no idea what to expect which will exacerbate the stress you already feel. NPZ Law Group assists clients nationwide with DOL investigations and audits. Our knowledgeable Immigration and Nationality attorneys can answer any questions you or your staff may have about the entire process.
What is an H-1B Audit and Investigation?
The Immigration and Nationality Act (INA) created the H-1B visa classification. It provides for the temporary employment of foreign workers in the United States who are engaged in specialized occupations requiring higher-level education degrees. The law is specific regarding the requirements and standards for both those employers and employees who are participating in the H-1B Visa program. The responsibilities of overseeing H-1B visas fall among various government agencies. The DOL’s Wage and Hour Division (WHD) is one such supervising agency.
When an employer files the petition for an H-1B visa, the employer must agree to comply with labor conditions included in the Labor Condition Application. Failure to comply with these conditions can trigger an audit and investigation by the WHD and other supervising agencies and divisions. Specifically, WHD is tasked with making sure employers are paying H-1B visa workers the wage that was disclosed in the Labor Condition Application. WHD also has the responsibility of ensuring that the H-1B employees are in the occupation and the location that was specified on the application.
Among other things, an audit and investigation by WHD may include a site visit. WHD wants to ensure that the employee is working the listed job at the listed location. WHD also wants to investigate the job duties of the employee. In addition to the site visit, WHD will likely want to review things like:
- Whether the employer made the appropriate inquiries regarding the availability of a U.S.
Workerfor the employment position;
- Whether the employer is paying the designated wage listed in the application;
- Whether the employee is receiving the employment benefits he or she should be; and
- Verification of the employer’s dependency status
WHD investigations are adversarial in nature. A determination letter will be issued after an investigation and every determination contained therein may be appealed. The employer will be notified of the opportunity for a hearing to be held 60 days after the determination letter has been issued.
If found to be in violation of the requirements of the H-1B visa program, an employer may be required to do things such as pay back wages to displaced workers or reinstate a displaced U.S. worker. A civil monetary penalty may also be assessed and could be anywhere between $1,000 and $35,000 per violation.
Helping Employers Protect Themselves in the Event of an H-1B Audit and Investigation.
As an employer participating in the H-1B visa program, you have very specific requirements with which you must comply. DOL is very quick to trigger an investigation if there is even the slightest chance that fraud may be occurring. The dedicated attorneys at Nachman, Phulwani, Zimovcak Law Group, P.C., will help you through this process and get you prepared for anything that may happen during or as a result of a DOL audit and investigation.
If you should have any questions or need more information about the ways in which the U.S. Immigration and Nationality La