Something that all H-1B and EB-2/EB-3 immigrant sponsors must keep track of is compliance with labor condition application (LCA) regulations. The labor certification process is designed to protect U.S. workers in two ways. It makes sure that aliens aren’t taking jobs that qualified U.S. workers are seeking and aren’t working for less than the usual or “prevailing” wage in their position. In simple terms, U.S. immigration policy tries to give employers no economic incentive to hire foreign workers (except for qualifications and desire for the position). LCA enforcement is how this is accomplished, and the Wage and Hour Division of the Labor Department (WHD) will initiate investigations if it suspects any lapse in LCA compliance. Penalties for violations are mostly monetary–but may include the loss of a company’s ability to hire foreign workers.
The plight of delinquent companies that knowingly violate LCA regulations isn’t the focus here. There are many companies that apparently didn’t know that they were in violation–and went on to contest their violations. (In fact, the only time the public hears about the details of one of these cases is if a violation is contested and the case goes to hearing.) Here are some common LCA issues employers sometimes stumble into.
- Employers can get in trouble for deferring paying labor-certified employees–as may happen during a contractual disagreement, even with full back-payment coming as soon as an agreement is reached. The WHD is all too eager to view things like this is as employers giving themselves more leeway with alien workers (than with U.S. ones). The payment arrangements detailed in the approved petition should be followed. If this isn’t possible, any deferred payment should come with interest, at the very least.
- The specifics of the employment plan must be hammered out long before the employee is expected to start work. He or she must be prepared to carry out the agreement detailed in the approved petition–or redo the whole petition process.
- H-1B workers must be paid with U.S. currency. There have been cases where initial payments were made in foreign currency through overseas accounts. This has been found to be an LCA violation on several occasions.
- Not only must employers pay H-1B filing fees, they must pay all recruiting fees–if there are any–even if the recruitment happened overseas. The employer must bare nearly all the burden of receiving the foreign worker.
H-1B and EB-2/EB-3 employers must also be able to show that a “bona fide” (or actual) employment relationship exists–and that everything is as it seems on the approved petition (in other words, that there is no fraud). Enforcement of this falls to the Office of Fraud Detection and National Security (FDNS) at the State Department. Its investigators visit and conduct interviews with workers as well as officers, sometimes without giving the officers enough time to prepare workers for said interviews. Extra care should be taken to prepare for them because they can be the deciding factor on how the government views a case.
Sponsor company owners or other higher-ups may be held personally liable for foreign labor violations. Sole owners, and/or those who controlled matters of staffing and salary (during the violations), are most vulnerable. (It can also be expected to happen to those who ignore corporate regulations, including but not limited to, intermixing corporate and private funds or working through many interchangeable business entities.) Thus, the following tips may prevent much personal difficulty in an FDNS situation.
- Consult immigration council as soon as FDNS interest in the company becomes clear. Determine the purpose of the visit, collect investigator contact info, and tell him or her that the company needs to have a conference with counsel before any personal information is given. (Investigators should be told that the company will get back with them within the next few days.)
- All the information supplied on form I-129 (and supporting documentation) should be easily verifiable by any investigator.
- Have a go-to person in charge of LCA and FDNS inquiries. This should be the person signing as the company representative on USCIS forms.
- There must be an established and readily communicable hierarchy of supervision, detailing who supervises the foreign worker, and who supervises that person, etc.
- Give foreign workers a protocol on responding to government inquiries, in part to ensure that they don’t contradict each other to investigators. The workers may be contacted at home, so they should keep a “cheat sheet” of responses there.
- At the end of the investigation, request a private closing conference with the investigator. Offer to provide any additional information. Attempt to ascertain how he or she thinks the investigation went, and confirm that they have no further questions or concerns.
Above all, employers should share all LCA or FNDS investigation details with immigration counsel, such as The Law Firm of Shihab and Associates. Good counsel can be the key to getting through these situations violation-free.