WHD AUDITS

The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) is responsible for administering various provisions of the Immigration and Nationality Act (INA) that extend protections to different types of nonimmigrant workers. The H-1B program applies to employers seeking to hire nonimmigrant foreign nationals as workers in specialty occupations or as fashion models of distinguished merit and ability.

An employer intending to hire an H-1submit a Labor Condition Application (LCA) to the DOL. In the LCA, the employer must promise to pay the employee a specified required wage rate and provide certain working conditions. The required wage rate is the higher of either the actual wage or the prevailing wage level for the occupational classification in the area of employment.

The DOL reviews LCAs for completeness and obvious inaccuracies. If it does not find that the LCA is “incomplete or obviously inaccurate,” the DOL must certify the LCA within seven days of receipt.  Though DOL is generally prohibited from investigating the veracity of the LCA prior to certification, the Secretary of Labor (the “Secretary”) may conduct certain compliance investigations after certification.

The Secretary may conduct investigations under the following circumstances:

1. Upon receiving aggrieved party complaints;
2. Random Investigations of certain employers;
3. Investigations after the Secretary personally certifies that he or she “reasonable cause” to believe the employer is non-compliant; or
4. Investigations based on “specific credible information” of a willful violation of certain requirements frertain requirements from a reliable source.

An aggrieved party complaint must be filed not later than 12 months after the latest date on which the violation occurred, but the scope of remedies may be assessed “for a period prior to one year before the filing of the complaint.”. If the Administrator finds that the employer has violated the wage requirements, he or she may order the employer to pay back wages to the H-1B employee. The employer may challenge the Administrator’s determination by requesting a hearing with an Administrative Law Judge (ALJ). The ALJ’s decision may then be appealed to the Administrative Review Board (ARB)