Effective Legal Representation is Key to Defending LCA Department of Labor Investigations (H-1b Audit or LCA Audit)
December 30, 2008
I have heard many of my clients who frequent our offices in Ohio, Michigan and Washington, D.C. and who sponsor H-1b workers attesting to the valuable contributions introduced by the employment of foreign labor. It is a myth that companies who employ foreign nationals do so to exploit cheaper labor. The truth is, employers who seek skilled foreign labor normally do so only after exhausting the available US labor pool and only in seeking scarce highly skilled workers. It has been documented that H-1b workers foster growth in the US economy by projecting new products and services into the market place.
With so many documented benefits, and as the national unemployment rate increases during the current downturn in the economy, the US Department of Labor (“US DOL”) Wage and Hour Division will be more apt to stepping up investigations of companies who regularly employ foreign nationals relative to H-1b violations. Yet with so many audits coming down the pike, few are able to find what my clients call a “competent Department of Labor audit lawyer.”
The main mission of the Labor Department is to protect the interests of the US workforce and to assure that the employment of foreign nationals does not adversely affect the working condition of US citizens. If the reader of this article has never had experience with a Labor Department audit process also known as the LCA compliance investigation, LCA audit, or H-1b audit, he or she cannot begin to comprehend the nightmarish impact and disruption such process has on a business. It is a very difficult process for an employer to endure both financially and psychologically. The penalties and back wages are often six digits.
The thrust of the US DOL audit (H1b audit) is to discover employer violations of any of the regulatory directives implicit in the LCA attestations. Employers who sponsor H-1b workers know that these requirements are several. For instance, H-1b sponsoring employers must maintain a “public access file” containing certain records; the employer must also maintain updated approved LCAs when the “worksite” of the H-1b employee changes and must pay “prevailing wages.” The employer may not “bench” H-1b employees and is considered in violation of the regulations.
An LCA compliance audit(H-1b audit) begins when the USDOL receives “specific, credible” information from a source relative to the employer’s LCA violations within the twelve (12) months preceding the filing of the complaint. The complainant may not necessarily be an aggrieved party. The procedure of the H-1b audit begins with a letter that charges the company with certain violations and levies against the employer penalties and often times the payment of back wages. An employer has 15 days from the receipt of such letter to request a hearing before an Administrative Law judge. The administrative law judge will conduct a trial thereby hearing witnesses from both sides to determine whether the employer had in fact committed the alleged violations and whether the assessed penalties are in accordance with law and fact.
From my experience, I find that most employers who fall in violation do so unwittingly. In other words, most of the LCA violations occur because employers are not willing to pay for the cost of competent legal representation which will navigate them effectively through the complex rules governing this program. Often times, employers look for a bargain and with such bargains come a lower level of service. Some employers view counsel’s role in this process is to effectuate the “immigration filing” not necessarily representation, hence the problem with bargain “cookie cutter” H-1b filing approaches that litter the Internet. If your company has been selected for an LCA violation audit, selecting competent counsel can
Effective H-1b legal representation requires counsel to guard the employer against the pitfalls inherent in this program. This can be accomplished through assisting the employer-client to create proactive and preemptive measures and by instituting compliance systems and procedures.
Counsel during the USDOL H-1b audit process must play a dual role very similar to the one advocated by the late Theodore Roosevelt: “speak softly and carry a big stick.” Effectual lawyering requires counsel in this process to negotiate with USDOL initial findings by mitigating the penalties and back wages through the introduction of credible defenses. At the same time, the lawyer must keep a keen eye at preserving the evidence moving forward in case initial negotiations with the USDOL investigators fail. Hence the immigration lawyer in this process must have sufficient litigation experience to challenge whatever adverse findings the USDOL may advance in Court. This can be done through careful weighing of the evidence through the entire process.
Companies that employ foreign nationals in the H-1b visa program are more likely to continue to be targets for such LCA violation investigations and H-1b audits. The lawyers at Shihab & Associates, Co., LPA have litigation and immigration law experience that are effective in defending employers in these proceedings.