WAGE AND HOUR DIVISION (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 seeking to hire an H-1B worker must first submit a Labor Condition Application (LCA) to the U.S. Department of Labor (DOL). Through the LCA, the employer attests that it will pay the required wage and provide appropriate working conditions. The required wage is the higher of the actual wage paid to similarly employed workers or the prevailing wage for the occupation in the area of intended 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 before certification, the Secretary of Labor (the “Secretary”) may conduct certain compliance investigations after certification.
The Secretary may conduct investigations under the following circumstances:
- Upon receiving aggrieved party complaints;
- Random investigations of certain employers;
- Investigations after the Secretary personally certifies that they have “reasonable cause” to believe the employer is non-compliant; or
- Investigations based on “specific credible information” of a willful violation of certain 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, they 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).
