An Administrative Law Judge in 2012 found numerous H-1B violations, including willful failure to pay required wages to H-1Bs. In this case the ALJ assessed civil money penalties and debarred the employer for two years, but ordered the back wage assessment to be recalculated. (Matter of Sirsai, Inc., 7/27/12, Case No. 2011-LCA-00001).
The case contains an excellent discussion of “Leveling.” In this case the LCA contained a Level 1 wage for many perhaps most of the workers. The OES online website contains four levels of wages. Occupations are divided into broad categories in particular geographic locations. Level 1 is an entry-level position. Certain job requirements will increase the level assigned to the position. The Investigators used various means including the H-1B supporting letters to determine that because of the experience and special skills required for the position, a Level I wage was not appropriate. The Agents calculated the wage difference from the date the workers “entered into employment” with the Employer until there was a bona fide termination. We are talking about a wage assessment in excess of $900,000. Keep in mind that the Department of Labor does have an on-line system referred to as “I-Cert” which allows you to submit all relevant information to the Department of Labor for a wage determination. However, because of the length of time it takes to receive an on-line determination, Employer’s prefer to attempt their own determination. Backing into a Level is not the appropriate way to determine the wage. The on-line determination is protection for employers from DOL audits and assessment of back wages, provided the worker is in fact performing those duties and there is no misrepresentation. Sirsai is over forty pages in length but a worthwhile read for Employers. Below is an excerpt found at pages 3-4 of the case which discusses an Employer’s obligations under the program.
“The H-1B visa program allows U.S. employers to temporarily hire non-immigrants to fill specialized jobs in the United States. Specialized occupations are those occupations that require “theoretical and practical application of a body of highly specialized knowledge, and…attainment of a bachelor’s or higher degree in a specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 8 U.S.C.A. § 1182(n)(1)(A)(i); 20 C.F.R. §§ 655.731, 655.732. Employers who seek to hire an H-1B nonimmigrant in a specialty occupation must first submit to the Department of Labor (DOL), and obtain DOL certification of a labor condition application (“LCA”).3 20 C.F.R. § 655.700(b)(1); In the Matter of Eva Kolbusz-Kline v. Technical Career Institute, ALJ No. 93-LCA-4, 1994 WL 897284, at *3 (Sec’y July 18, 1994). The application must specify the number of workers sought, the occupational classification in which they will be employed, and the wage rate and conditions under which they will be employed. 8 U.S.C.A. § 1182(n)(1)(D). In addition, the employer must attest that it is offering and will offer during the period of employment the greater of: (1) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or (2) the prevailing wage level for the occupational classification in the area of employment. 8 U.S.C.A. §1182(n)(1)(A)(i)-(ii); 20 C.F.R. § 655.730(d). The employer must retain the original signed and certified LCA in its files, and must make a copy of the application, as well as specified necessary supporting documentation, available for public examination. 20 C.F.R. § 655.705(c)(2). Once DOL certifies the LCA, the employer submits paperwork to the United States Citizenship and Immigration Services (“USCIS”) and requests an H1-B visa for the workers. The non-immigrant workers are then admitted to the United States.
The Act directs the DOL to review the LCA only for completeness or obvious inaccuracies. Unless the Department finds that the application is incomplete or obviously inaccurate, the Department shall provide the certification described by the Act within seven days of the date of the filing of the application. 8 U.S.C. § 1182 (n) (1) and 20 C.F.R. § 655.740. Upon certification of the LCA by DOL, the employer is required to pay the wage and implement the working conditions set forth in the LCA. 8 U.S.C. § 1182(n)(2). These include hours, shifts, vacation periods, and fringe benefits. Id. The Department has promulgated regulations which provide detailed guidance regarding the determination, payment, and documentation of the required wages. See 20 C.F.R. Part 655 Subpart H. The remedies for violations of the statute or regulations include payment of back wages to H-1B workers who were underpaid, debarment of the employer from future employment of aliens, civil money penalties, and other relief that the Department deems appropriate. 20 C.F.R. §§ 655.810, 655.855. An employer also has a duty to notify INS “immediately” of any changes in the terms and conditions of an H-1B nonimmigrant’s employment. 8 C.F.R. § 214.2(h)(11).
The Employer’s obligation to pay H-1B workers the required wages begins on the date on which the worker “enters into employment with the employer.” 20 C.F.R. § 655.731(c)(6). The H-1B worker is considered to “enter into employment” when he first makes himself available to work or otherwise comes under the control of the employer. Id. at § 655.731(c)(6)(i).
Alternatively, even if the worker has not yet “entered into employment,” where the worker is present in the U.S. on the date of the approval of the H-1B petition, the employer shall pay to the worker the required wage beginning 60 days after the date the worker becomes eligible to work for the employer. Id. § 655.731(c)(6)(ii). The H-1B worker becomes eligible to work for employer on the date set forth in the approved H-1B petition filed by the employer. Id.
Under the INA’s “no benching provision,” the employer is obligated to pay the required wage even if the H-1B nonimmigrant is in “nonproductive status due to a decision by the employer (e.g., because of lack of assigned work).” 20 C.F.R. § 655.731(c)(7)(i); Administrator v. Kutty, ARB No. 03-022, ALJ Nos. 01-LCA-010 through 01-LCA-025, slip op. at 7 (ARB May 31, 2005); Rajan v. International Bus.Solutions, Ltd., ARB No.03-104, ALJ No. 03-LCA-12, slip op. at 7 (ARB Aug. 31,2004). However, the employer does not need to pay compensation if the “H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant).” 20 C.F.R. § 655.731(c)(7)(ii).
The employer’s obligation to pay the required wage ends when there is a “bona fide termination” of the employment relationship. Id. at §655.731(c)(7)(ii). In order to effectuate the termination, the employer under the H-1B program, must notify the Department of Homeland Security (DHS) that the employment relationship has been terminated so that the petition is canceled. 8 C.F.R. § 214.2(h)(11). Where appropriate, the employer must provide the nonimmigrant employee with payment for transportation back home.”
If you are an Employer and you want additional information regarding obligations under the program, please do not hesitate to contact us.