Published in the Tennessee Bar Association, Immigration Law Section Newsletter
In recent months, the U.S. Department of Labor (DOL) has been aggressively investigating employers for H-1B Labor Condition Application (LCA) violations. As the DOL ramps up its Wage and Hour audits, it is critical that employers sponsoring H-1B workers for employment have their Public Access Files in order and have an understanding of who may inspect a Public Access File.
The Immigration and Nationality Act created the H-1B category for temporary employment of foreign workers in the United States in specialty occupations or as fashion models. The intent of the H-1B program was to aid employers who could not otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the employment of qualified international workers in the United States. The law established certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the international workers, as well as to protect the H-1B workers.
Under the law, DOL's Employment Training Administration (ETA) certifies the conditions that an employer must attest to on the LCA. Once ETA has certified the LCA, the employer must provide it, along with the I-129 Petition for Nonimmigrant Worker, to the USCIS. The petition includes some of the same information as the LCA, and as part of its review, USCIS reviews information on both documents to determine whether the job meets the requirements of a specialty occupation and whether the petition indicates that the qualifications of the prospective H-1B worker meet the statutory requirements in that specialty. Once an employer obtains the certified LCA and approved petition, the DOL's Wage and Hour Division (WH) enforces the attestations in the LCA, which include the material facts and labor condition statements.
Under the H-1B program, WH is responsible for ensuring that H-1B workers are receiving the wages promised on the LCA and are working in the occupation and at the location specified. WH can only initiate H-1B-related investigations as a result of one of four factors: (1) WH receives a complaint from an aggrieved person or organization; (2) WH receives specific credible information from a reliable source that the employer has failed to meet certain LCA conditions, has engaged in a pattern or practice of failures to meet such conditions, or has committed a substantial failure to meet such conditions that affects multiple employees; (3) Secretary of Labor has found, on a case-by-case basis, that an employer, within the last five years, has committed a willful failure to meet a condition specified in the LCA or willfully misrepresented a material fact in the LCA; or (4) if the Secretary of Labor has reasonable cause to believe that the employer is not in compliance, the Secretary may certify that an investigation be conducted. When violations are found, WH may assess civil money penalties and other remedies, including back wages depending on the type and severity of the violation.
Within 15 days of the date of the notification by WH to the employer that a determination of violations has been made, any interested party may request a hearing before an administrative law judge (ALJ) on the WH's determination. Within 30 days of the decision by an ALJ, an interested party may request a review of the ALJ's decision by the DOL's Administrative Review Board. Employers found to have committed certain violations may also be precluded from future access to the H-1B program (debarment) and other immigration programs for a period of at least one year.
Labor Condition Application -
Employers seeking to sponsor foreign workers for H-1Bs are required to maintain a Public Access File which contains documentation supporting LCA filed online with the DOL. The LCA requires employers to attest to the following: they will pay the higher of the actual wage or the prevailing wage and offer benefits to H-1B workers on the same basis as offered to U.S. workers; they will provide working conditions that will not adversely affect similarly employed U.S. workers; there is no strike, lockout or other work stoppage in the occupational classification at the place of employment; they will notify the bargaining representative, if any, or post a notice that the LCA is being filed; and they will provide the H-1B worker with a copy of the certified LCA.
Public Access File -
In order to demonstrate compliance with the LCA, employers are required to maintain a Public Access File available for public inspection. Within one working day of filing the LCA with the DOL, employers must make the Public Access File available for public inspection. The Public Access File must be kept either at the employer's principal place of business in the U.S. or at the place of employment. DOL has the authority to enforce an employer's LCA obligations and may audit the Public Access File.
The Public Access File must contain the following: copy of the certified LCA; copy of the LCA cover pages; documentation which provides the wage rate to be paid to the H-1B worker; actual wage system memorandum; prevailing wage documentation; summary of the benefits offered to U.S. workers in the same occupational classification as the H-1B worker(s), and if there are differences, a statement as to how differentiation in benefits is made; Notice of Filing of the LCA, evidencing that the LCA was physically posted in two conspicuous locations at the worksite(s) where the H-1B employee will work; and acknowledgment of receipt of the LCA by the H-1B employee.
Retention of records -
Either at the employer's principal place of business or at the place of employment, the employer must retain copies of the Public Access File for one year beyond the period indicated in the LCA or, if a complaint is filed, until the complaint is resolved. Required payroll records for H-1B employees and other employees in the occupational classification shall be retained at the employer's principal place of business or at the place of employment for a period of three years from the date(s) of the creation of the Public Access File, except if an enforcement action is commenced, all payroll records shall be retained until the enforcement proceeding is completed.
Required Wage -
All H-1B employers must keep documentation establishing that they are paying the required wage for the position. The "required wage" is the greater of the actual wage or the prevailing wage. All H-1B employers must also maintain payroll records for all other employees in the same position as the H-1B employee with similar experience, education, and qualifications.
Inspecting a Public Access File -
According to the U.S. Department of Labor's Field Operations Handbook, the "public access file shall be made available to members of the public (including employees) who request it." This sounds straight-forward enough, right? May a member of the public appear unannounced at an employer's principal place of business or place of employment and ask to inspect the Public Access File?
To ensure that members of the public have proper access to the Public Access File, employers should implement the following practices: all requests to inspect the Public Access File must be made in writing and acted upon as soon as possible, but no later than the end of the third business day following the request; member of the public who asks to inspect the Public Access File must do so in writing and provide his/her name, mailing address, daytime telephone number and a description of the record(s) requested and identify the record with reasonable specificity; custodian of the Public Access File should set a date and hour at which time the file will be available for inspection; if the Public Access File is stored in electronic format, the custodian of the file must provide effective access to the requestor; custodian of the file should retain control of the file at all times, meaning the requestor may not remove the file from the premises and may not photocopy any document(s) in the file; custodian of the Public Access File may not charge a fee to inspect the file; and Public Access File must be available for inspection at all times during normal office hours.
The steady uptick in H-1B wage and hour compliance investigations underscores how important it is for employers of H-1B workers to meet all the obligations of the LCA. Employers, therefore, must understand the obligations imposed upon them by the LCA and develop and maintain the appropriate policies and mechanisms to ensure consistency and reduce the probability of non-compliance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
