H1-B Visa Audits and Investigations of H-1B Petitioners and Employees

The H1-B Visa program is a process which enables United States (U.S.) employers to hire nonimmigrant foreign citizens as employees, if the employees work in certain specialty occupations. This program is overseen by the U.S. Department of Labor (DOL), and although it is very beneficial for both the companies and potential employees involved, there are certain requirements which businesses must comply with to avoid an H1-B audit or investigation. The following will outline some mistakes that employers should watch out for to ensure they avoid or successfully dispute such an audit.

Prospective employers begin the H1-B application process by filing a Labor Condition Application (LCA). It lists "attestations" by the employer, which include the pay rate, employment period, and the geographical location where the employee will work. H1-B employees must be paid at comparable rates to U.S. citizen employees and must work in the location designated on the LCA.

The DOL is usually made aware of a potential audit target by the filing of a current or former employee complaint. A letter is then sent to the employer from the Wage Hour and Employment Division of the DOL and an interview is set up with the appropriate official at the employer's business.

If the employer is found to be in violation of the law, he may be assessed a fine or required to pay back wages to the aggrieved employee(s), or both. In addition, criminal charges may be filed, and the employer may be barred from participating in the H1-B program indefinitely.

The DOL is more likely to investigate certain employers if they commit mistakes that other past violators have made. The following are some of the most common mistakes.

• Employers fail to keep accurate data including pay rate, work locations, and employee tax information.
• They fail to pay the actual or prevailing wage to H1-B employees as paid to U.S. citizen employees.
• Employers do not accurately document how wages are computed for different skill levels.
• Employers deduct business expenses from the employee's wages.
• Employers fail to pay wages on time – employers must start paying H1-B employees within thirty days of employees' entrance into the U.S., or within sixty days if the employee is already within the U.S.
• Employers fail to properly document termination of the H1-B employee.
• Employers do not keep employees' LCAs up to date.

Many of these mistakes can be summed up into one rule: employers must keep accurate records for their H1-B employees. If they do not, not only may they be subject to an audit, it will be even more difficult to successfully defend against one.

H1-B compliance lawyer Samuel C. Berger represents businesses that are subject to H1-B audits in the New York and New Jersey areas. We advise businesses on how to petition to bring employees to the U.S., and we help those businesses with any compliance issues they encounter. To schedule a confidential consultation to see how we can assist you, please contact us today online or at (201)587-1500.