Immigration Advisory: Department of Labor Awards Over $1,000,000 in Back Pay and Fines for Violations of H-1B Labor Condition Application
1/1/2003
In order to secure H-1B work status for foreign nationals, U.S. employers must make promises regarding the wages and working conditions of the H-1B workers. This task is accomplished by filing a Labor Condition Application or "LCA" with the U.S. Department of Labor (DOL) prior to filing the H-1B petition with the Immigration and Naturalization Service (IMS). The employer must also maintain a public inspection file that contains, among other items, documentation of the "prevailing wage" for the occupation in the geographic area and documentation of the employer's "actual wage" paid to employees in the same position. The employer must also maintain payroll records for the H-1B worker, as with any employee, to show that the wage indicated on the LCA was actually paid. Enforcement of the wage and working condition requirements fall under the jurisdiction of the Wage and Hour Division of the DOL. The DOL's enforcement powers give it the authority to investigate and assess back wages and monetary civil penalties against employers who do not comply with the terms of the LCA. These rules are in place to ensure that U.S. employers who hire H-1B foreign workers offer the same wages and working conditions as they would to U.S. workers. The policy concern of Congress and the DOL is that U.S. employers will take advantage of the H-1B program and pay foreign workers less or offer fewer benefits than they would to U.S. workers. This advisory explores issues surrounding these topics.
