The United States Department of Labor (“USDOL”) H–1B audit process, also known as the LCA audit, is an investigation of the company’s H–1B practices. Every employer that hires an H–1B alien is required by law to make available the labor condition application (“LCA”) and the necessary supporting documentation for public inspection at the employer's principal place of business. This public inspection file must be available one working day after the LCA is filed. The USDOL may audit a company at any time to determine if the company is following the law. Generally, audits are triggered by the filing of a credible complaint, which normally is submitted by a current or former disgruntled employee.Department Of Labor Audit Procedure
What options do I have if I do not agree with the officer’s determination
The USDOL audit procedure begins with the receipt of a letter from the USDOL Wage and Hour Division addressed to a specific person in the company’s management requesting the production of certain documents relating to H–1B visas filed by the company. If you have received a letter of this sort you should contact an experienced immigration lawyer as the preliminary meeting with the USDOL during an H–1B audit is most critical.
Mainly, the USDOL wants to examine the company’s H–1B and/or public inspection file for each LCA the company filed as well as supporting documentation. It is the company’s burden to prove that it has complied with LCA regulations. The USDOL may also investigate any other H–1B violations during the audit process. This may include whether the company had followed the LCA notice requirement, followed certain regulatory record keeping directives, paid the correct wages to H–1B employees, and whether any U.S. workers were displaced by H–1B hiring.
A representative from the USDOL will visit the company on the specified date to conduct the H–1B audit. While there, the officer will inspect the company’s records and make copies of them. The officer may also question employees and gather any additional information as deemed necessary to determine compliance regarding the matters which are the subject of the investigation. The company is required by law to fully cooperate with the investigator.
The investigation may take a day, a week, a month or months. The longer the investigation takes, the more likely it is that the investigator is building a case against the company. It is critical that the company makes a good faith effort to cure any deficiencies prior to meeting with the USDOL officer. This should be done by a careful and through examination of the company’s records by an attorney experienced in USDOL H–1B audits. Once the investigation is complete, the officer will issue an “Administrator’s Determination letter.”
If the investigator believes that the company committed violations, the investigator may set forth penalties. The investigator has many factors to take into account when determining possible penalties. Those factors include your good faith effort to comply with the regulations now and your commitment to future compliance. The Federal Regulations make it clear that the best way to avoid a costly fine is to acknowledge and correct your mistake. Clearly, the biggest concern here is to allow your company to continue to recruit H–1B employees. If fines are imposed, a process of negotiations will ensue. However, meaningful negotiations are premised on the USDOL feeling that the employer has engaged in a good faith effort to correct its violations.
At that point, you have the option of accepting the findings or requesting an administrative hearing. You may dispute those findings at that hearing and argue for different penalties.Conclusion
The USDOL H–1B visa audit is a serious situation. Federal Regulations require that an H–1B employer keep detailed records on each LCA application. The USDOL usually audits an employer when it receives a tip from a current or previous disgruntled employee. This may mean that the USDOL already has compiled a lot of information on your company’s record keeping, practices or notice procedures. Accordingly, it is highly recommend that an immediate and detailed inventory of the company’s H–1B practices and record keeping practices be undertaken prior to discussing the matter with the USDOL officer during the H–1B visa audit interview. It is critical that possible violations be identified prior to meeting with the USDOL investigator.
The Law Firm of Shihab & Associates, Co., LPA is experienced in H–1B visa audits and will fight for the rights of employers. If you have questions about an H–1B audit matter, and/or you need help in USDOL investigation, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney. Our law firm defended employers before the USDOL and the office of the Immigration Law Judge in Washington, DC in matters involving H–1B visa audits.