An H-1B Audit is conducted by the Wage and Hour Division of the US Department of Labor (DOL) to find out whether an H-1B employer is in compliance with the existing H-1B laws and regulations. The Labor or H-1B Audit could arise from many sources, including but not limited to employee complaint, US Embassy referral or random audit.

The Law Office of Keshab Raj Seadie, PC, offers creative solutions to your immigration problems. Our firm has more than 10 years experience in solving H-1B Audit issues in areas such as Material Misrepresentation in LCAs, Improper Selection and Classification of Prevailing Wage Levels and Actual Wage, Benching and Nonpayment of Wages, Improper Public Access Files, Shortcomings in LCA Postings, I-9 Violations, Required Wage Documentation, Exempt H-1B Worker, Recruitment of US Workers, Level or Degree of Employer’s Wrongdoing in Violations, Displacement of US Workers, Accepted H-1B Fees, Required to Pay Penalty for Ceasing Employment, and Failure to Comply with various provisions of LCA and H-1B laws and regulations. We have extensive experience in H-1B and LCA Audits and litigation, as well as in most other areas of immigration law. Our firm will work diligently to solve your immigration problems. We have successfully represented H-1B Dependent employers in H-1B/LCA Audits throughout the US, including New York, New Jersey, Pennsylvania, Delaware, Connecticut, Massachusetts, Florida and California.

 

 

WHAT PENALTIES OR SANCTIONS CAN AN H-1B EMPLOYER FACE FOR NON-COMPLIANCE OF THE H-1B PROGRAM REQUIREMENTS?

When violations are found, the Administrator of the Department of Labor’s Wage and Hour Division may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The Administrator may also impose other remedies, including payment of back wages to employees.

 

H-1B AUDIT EXPECTATIONS & ETIQUETTE

In most instances, the Employer will receive written notification approximately one week prior to the scheduled start of an H-1B Audit. An Employer undergoing an H-1B Audit should expect additional documents and information to be requested through the course of the investigation, and should be prepared to provide the materials in a timely fashion. Please be aware that there may be circumstances where no advance H-1B Audit notification will be provided to an Employer.

Providing a comfortable environment for an Investigator to conduct the audit, as well as all requested materials in an organized and timely fashion, will help demonstrate an Employer’s good-faith intention toward H-1B program compliance. There is an expectation of voluntary compliance, and it will behoove the Employer to proactively take any steps required to comply with all requests. It is important that an Employer engage legal counsel to ensure appropriate compliance.

 

 

 

H-1B AND L-1 USCIS AND FDNS SITE VISIT

USCIS’ FDNS Commences Audit of H-1B Program, Including Unannounced Site Visits to H-1B Employers and Their Clients

The U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) has recently commenced an assessment of the H-1B program. The following is information that employers (and their immigration counsel) should know about FDNS, FDNS’ current H-1B assessment program, and how to respond if an FDNS Officer visits the employer’s (or its client’s) office as part of this assessment program.

Preparing the supporting documentation for the Labor Condition Application (LCA) is the core of the employer’s responsibility. The employer must be careful to meet the DOL requirements for the content of that documentation and for its retention and availability. The DOL recognizes two types of supporting documentation: (1) documentation which must be made available in a public inspection file within one working day after the date of filing the LCA with the DOL, and (2) documentation which must be made available to DOL investigators “upon request.” It is important for employers to distinguish between the two types of documentation, and put into the public inspection file only the documentation required by regulation to be there.

As of 2014, USCIS’ FDNS has expanded Site Visits to L-Visa Employees and Employers

The U.S.C.I.S. announced early in 2014 that it will begin conducting work site inspection visits to L-1 employers under the Fraud Detection and National Security Division’s inspection program. This comes as a response to a new report “Implementation of L-1 Visa Regulations” released this year to assess USCIS’s intra-company transferee program. The report makes suggestions which would help prevent fraud from L- visa program participants. The Office of the Inspector General found that L-1 petitions were often erroneously approved with little regulation, now the former H-1B FDNS work site visits have been extended to cover L-1 and L-2 Visas.

What is an Audit?

An Audit is conducted by the Wage and Hour Division of the US Department of Labor (DOL) or United States Citizenship and Immigration Services (USCIS) to determine if an employer is in compliance with the existing laws and regulations. The Labor Audit could be the result of multiple causes including but not limited to Employee Complaint, US Embassy Referral, or Random Audit. As a part of this Audit, the DOL or USCIS would send a letter requesting the employer to produce the public access file along with the immigration and wage records.

Preparing the supporting documentation for the Labor Condition Application (LCA) is the core of the employer’s responsibility. The employer must be careful to meet the DOL requirements for the content of that documentation and for its retention and availability. The DOL recognizes two types of supporting documentation: (1) documentation which must be made available in a public inspection file within one working day after the date of filing the LCA with the DOL, and (2) documentation which must be made available to DOL investigators “upon request.” It is important for employers to distinguish between the two types of documentation, and put into the public inspection file only the documentation required by regulation to be there.

Why Does an Audit Occur?

The Labor or H-1B Audit could be the result of multiple causes including but not limited to Employee Complaint, US Embassy Referral, or Random Audit. Approximately 80% of Audits arise due to employee complaint. Common employee complaints include benching and back wage issues, and the breach of one-year employment contracts. US Embassy and Consulate Referrals contribute to approximately 15% of audit initiatives. These referrals are often the result of suspicion of fraudulent degrees and work experience, fraudulent in-house IT projects, fraudulent letters from End Client Site and W-2s demonstrating wage paid is less than the H-1B required wage. Approximately 10% of Audits are the result of random selection.

Who Performs the Audit?

An Audit may be initiated by the Department of Labor (DOL) or by the United States Citizenship and Immigration Services (USCIS). If the audit is initiated by the DOL, an Investigator from the Wage and Hour Division will be assigned to lead the audit. The Fraud Prevention Unit of USCIS may also audit an Employer suspected of violating H-1B program mandates, or other immigration matters.

Also email us your Resume at visainfo@greencardmaker.com and mention the name you used for this application for thorough evaluation.

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