h-1B aUDIT
H1B/LCA News
ALJ Finds "Benched" H-1B Employee Entitled to Unpaid Wages (5/14/2009)
ALJ found that the employee did not need a SSN to begin work, only evidence of having applied for one, thus was in employment-related nonproductive status requiring payment. And that only pay reported to IRS met requirements as evidence of payment of prevailing wage. Benched H-1B employee is eligible for full salary in accordance with the approved LCA until the bonafide termination. The ALJ also stated that bonafide termination does not occur unless and until the USCIS receives a written request for termination. H-1B Employer does not have to pay for the duration of authorized unpaid leave of absence. Administrator, Wage & Hour Div. v. Itek Consulting, Inc. 2008-LCA-00046 (5/6/09).
ARB finds Employer?s Conduct Willful, Assesses Civil Money Penalties
DOL Administrative Review Board (ARB) reverses Administrative Law Judge?s prior determination that the Administrator had failed to meet burden of establishing that Employer?s conduct was willful in its failure to pay employee for non-productive time. Civil money penalties exacted by Administrator are upheld. Administrator v. Pegasus Consulting Group, Inc. (ARB, 4/28/09).
ARB finds Employer Liable for Back Wages
DOL Administrative Review Board (ARB) finds Employer failed to report termination of the H-1B employee as required under H-1B program requirements. Employer is subsequently liable for back wages. The ARB asserts that employment indicated as full-time in the LCA and H-1B petition must be paid at the greater of the prevailing or actual wage rate. An employer cannot pay an H-1B worker any less, such as part-time wages for part-time work, without notifying USCIS. Administrator, Wage & Hour Div. v. Help Foundation of Omaha, Inc. et al. (ARB, 12/31/08)
ALJ finds Employer Liable for Back Wages and Retaliatory Termination
DOL Administrative Law Judge (ALJ) finds the Employer retaliated against the H-1B worker by terminating employment after worker complained to DOL. ALJ determines Employer must pay back wages, benefits and interest through the date of bona fide employment termination. Huang v. Ultimo Software Solutions, Inc., 2008-LCA-00011 (12/17/08).
ALJ looks to H-1B Required Wage
Administrative Law Judge (ALJ) utilizes LCA and prevailing wage in determining back pay. ALJ declines to consider a disputed agreement establishing a higher wage, as private contract disputes are outside the scope of the DOL's authority. Galal v. Z&A Infotek Corp., 2008-LCA-00010 (5/13/08).
ALJ finds Employer Liable for Payment of H-1B Filing and Premium Processing
Administrative Law Judge (ALJ) finds Employer liable for H-1B filing and premium processing fees; ordered to reimburse H-1B worker. Benching, termination, retaliation and other issues are discussed. Morales Toia v. Gardner Family Care Corp., 2007-LCA-00006 (4/25/08).
ARB addresses Statute of Limitations for Benching Claim
DOL Administrative Review Board (ARB) finds that the 12-month period in which a benching violation complaint may be filed begins when a bona fide termination takes place, rather than within 12 months of the first benching occurrence. Gupta v. Jain Software Consulting, Inc., 05-088 (ARB 3/30/07).
ARB finds Employment Termination and Rehiring Equivalent to Benching
DOL Administrative Review Board (ARB) finds that an Employer's termination of H-1B workers without notifying USCIS and later rehiring them constitutes unlawful benching. The violation is found to be willful. USDOL, Wage & Hour Division, ESA v. Pegasus Consulting Group, Inc. (ARB 6/30/05).
Welcome to the Destination Website for H-1B Audit
Law Office of Keshab Raj Seadie, PC
146 West 29th Street, 10th Floor
New York, NY 10001
Phone: (212) 571-6002
Fax: (212) 571-7302
www.h1baudit.com
keshab@greencardmaker.com
Are you prepared for an H-1B Audit?
Department of Labor is cracking down. Your company could be the next target! That's Why You Must Act Now And Conduct An Internal H-1B Audit Today! Tomorrow May Be Too Late!
Call us today for a FREE initial consultation! (212) 571-6002
Don't Let H-1B and LCA Audit Problems Undermine Your Success
Do you have an H-1B or LCA Audit problem that needs to be solved? Law Office of Keshab Raj Seadie, PC offers creative solutions to your immigration problems. Our firm has more than a decade of experience in creatively solving H-1B Audit problems in such areas 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 Wrong-doing 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.
Along with an immigration practice that serves H-1B Dependent Employers in all areas of H-1B and LCA Audits, our New York City Office features an internationally acclaimed Immigration Law practice handling the full spectrum of immigration law matters, from H-1B Visas to Green Cards. Our L-1 and E-2 Practice Group takes advantage of its strategic location in New York City to counsel major international clients on movement of key executive and managerial professionals. In PERM and Labor Certification, we have been recognized for our leadership in Information Technology Industries. Our Family Practice helps clients achieve solutions for family reunification.
We have extensive experience in H-1B and LCA Audits and litigation, and in most other areas of immigration law. Our Firm will work diligently and creatively to solve your immigration problems at a minimal cost to you.
We offer:
- Innovative and reliable solutions to immigration problems
- Extensive and valuable experience without the huge price tag
- Short-term and long-term assistance
- Court appearances and other support services
- Ongoing legal advice
Experience Counts: Successfully Processed more than 10,000 H-1B Visas
Successfully Represented H-1B Dependent Employers in H-1B/LCA Audits throughout the U.S. including NY, NJ, PA, DE, CT, MA and CA
This site is exclusively devoted to H-1B/LCA audit matters. Please visit www.greencardmaker.com for assistance with your other immigration matters including H-1B, E-2,L-1, and PERM related issues.
What is an H-1B
Audit?
An H-1B Audit is conducted by the Wage and Hour Division of the U.S. Department of Labor (DOL) or United States Citizenship and Immigration Services (USCIS) to determine if an H-1B employer is in compliance with the existing H-1B laws and regulations. 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. 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. In some instances, the DOL or USCIS Fraud Unit will visit unannounced. Learn more ?
Why does an H-1B 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 H-1B Audits arise due to employee complaint. Common employee complaints include benching and back wage issues, and the breach of one-year employment contracts. Learn more ?
Who performs the H-1B Audit?
An H-1B Audit may be initiated by the Department of Labor (DOL) Wage and Hour Division or by the United States Citizenship and Immigration Services (USCIS) Fraud Prevention Unit. Learn more ?
What factors are
taken into consideration during an H-1B Audit?
The US Department of Labor (DOL) Wage and Hour Division and/or USCIS Fraud Prevention Unit will evaluate all aspects of H-1B program compliance. Employers have been penalized for an array of violations including but not limited to failure to pay H-1B employees for time benched, failure to obtain amended LCA for a new job site, supplying false information on the Labor Condition Application (LCA), failure to hire U.S. worker who applied and was better or equally qualified for the job, etc. Learn more ?
If an Employer is
found in violation, what penalties may be imposed?
Labor Certification Application (LCA) and H-1B program violations can lead to the payment of back wages, civil money penalties with maximums ranging from $1,000 to $35,000 per violation, and debarment from participating in the H-1B program and other immigrant programs. Learn more ?
What are the obligations of H-1B dependent employers?
The Immigration and Nationality Act (INA) sets forth certain prerequisites for employers wishing to employ H-1B nonimmigrant workers. To obtain H-1B status approval, the employer must first file a Labor Condition Application (LCA) with the Department of Labor. LCA requirements include the employer?s attestation to pay the H-1B worker the higher of the prevailing or actual wage, offer benefits on the same basis as U.S. workers, not employ an H-1B worker where a strike or lockout is occurring, etc. H-1B dependent employers face additional obligations addressing non-displacement and recruitment of U.S. workers. Learn more ?
What is a Public Access File?
Compliance under the Labor Condition Application (LCA) requires that certain documents be made available File, must include a copy of the completed LCA, a statement of wage rate to be paid to H-1B worker, an ?actual wage? pay system memorandum, and a copy of prevailing wage documentation, amongst other documentation. Learn more ?
Contact us today for confidential H-1B audit guidance at
(212) 571-6002
H-1B EMPLOYERS click here to learn the answers to all your pertinent H-1B program questions, including:
What
documentation must be available for public inspection?
Learn more ?
H-1B WORKERS click here to learn the answers to questions about your rights as an employee, including:
What actions are
available to an H-1B worker whose rights have been violated?
If an H-1B worker feels that his or her rights have
been infringed upon, they should immediately file a complaint with the U.S.
Department of Labor, Employment Standards Administration, Wage and Hour
Division.
Learn more ?
Must an H-1B
employer pay for nonproductive time?
Learn more ?
What is
?Portability? and to whom does it apply?
Learn more ?
What protections
are there for ?whistleblowers??
Learn more ?
Copyright © 2009 by Law Office of Keshab Raj Seadie, P.C.