Challenge and Sanctions

The Department of Labor (DOL) has established a process for handling complaints concerning failure to meet the conditions of an LCA or of making misrepresentations. Sanctions include back pay, civil fines, and disqualification from USCIS approval of employment-based immigrant petitions or H, L, O, and P nonimmigrant petitions. These sanctions have been increased by the American Competitiveness and Workforce Improvements Act of 1998 (ACWIA) and the implementing regulations.

Penalties for LCA violations

ACWIA also increases fines for LCA violations, including:

  • $1,000 fine and one-year prohibition from filing immigrant and nonimmigrant visa petitions for failure to meet strike or layoff attestation; substantial failure to meet working-condition attestation or displacement attestation, posting or recruitment attestations, or misrepresentation of material fact in LCA
  • $5,000 fine and two-year prohibition from filing immigrant and nonimmigrant petitions for willful failure to meet any attestation, or willful misrepresentation of material fact in the LCA
  • $35,000 fine and three-year prohibition for willful failure to meet an attestation condition, or willful misrepresentation of a material fact on an LCA, in the course of which failure or misrepresentation, a U.S. worker is displaced during the 90 days before filing the application through the 90 days after filing the petition

In addition to fines and prohibition, willful violators may be randomly investigated for five years.

Additional violations for which penalties may be imposed

Whistle Blowers

Protected by the ‘whistle blower’ provision are employees, former employees, and applicants who cooperate in a proceeding or investigation concerning the employer’s compliance with LCA requirements. The employer violates the whistle blower provision by intimidating, threatening, restraining, coercing, blacklisting, discharging or in any other manner discriminating against a whistle blower. Violators of the whistle blower provisions may be fined up to $5,000 and prohibited from filing petitions for two years.

Penalty

A new penalty applies when the employer requires the H-1B nonimmigrant to pay a penalty to the employer for leaving the job prior to a contracted date. The employer may be fined $1,000 for requiring an H-1B worker to pay such a penalty, and may be required to return the amount paid to the H-1B nonimmigrant unless the amount is purely liquidated damages.

Bench Time

An employer is in violation of the LCA requirement for placing an H-1B nonimmigrant in unpaid nonproductive status due to a decision by the employer ‘based upon factors such as lack of work’ or due to the H-1B nonimmigrant’s lack of a permit or license. A violation will be found for failure to pay full-time wages to a full-time employee, failure to pay a part-time employee the part-time rate identified in the visa petition, failure to pay a new H-1B employee within 30 days of admission, or failure to pay a new H-1B nonimmigrant already present in the U.S. within 60 days of the date the nonimmigrant becomes eligible to work for the employer. The prohibition against unpaid nonproductive status does not apply to nonproductive time due to non-work related factors such as a voluntary request by the nonimmigrant for an absence like maternity leave or circumstances rendering the nonimmigrant unable to work.

Liability in Case of Placement

Another new penalty will be incurred if the petitioning employer places a non-exempt H-1B nonimmigrant with another employer and that other employer did or does displace a U.S. worker during the prescribed period of 90 days prior to filing the LCA through 90 days after filing the visa petition. A fine of $1,000 may be leveled against the placing employer. If the employer knew or should have known of the displacement or the employer has been subject to sanction based upon a previous H-1B placement with the same other employer, the petitioning employer may be prohibited from filing nonimmigrant or immigrant visa petitions for one year.

Conclusion

With LCA investigations by the DOL on the rise, VisaPro performs audits of LCA compliance programs and Public Access Files assisting corporates to evidence their good faith efforts to comply with all regulations. Combining our legal knowledge of the H-1B and LCA regulations with our experience representing companies through LCA investigations, VisaPro provides clients with the tools necessary to run a successful H-1B program, including the preparation of Public Access Files. If you are an employer who has questions on LCA, consult a VisaPro attorney. We also cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

Source: http://www.visapro.com/Immigration-Articles/?a=183&z=48