Common LCA Mistakes Resulting in Violations
An H-1B audit is conducted by the U.S. Department of Labor (USDOL) and is an investigation into a company’s use of Labor Condition Applications (LCA).
The USDOL will investigate the company’s records and the records of the H-1B visa workers. Within the company, the USDOL will search for evidence of keeping to attestation or promises made by the company toward the H-1B employee. Evidence they will look for include internal notices. The employer must comply with all USDOL requests.
Common Labor Condition Application (LCA) Mistakes Resulting In Violations:
1) FAILURE TO MAINTAIN RESPONSIBILITIES OF AN H-1B DEPENDANT EMPLOYER.
Federal Regulation determines a company as an H-1B Dependent employer when the company employs a certain number of H-1B employees:
- Less than 25 full-time employees and more than seven H-1B works
- 26-50 full-time employees and more than 12 H-1B workers
- 50 or more full-time employees and 15% or more of these employees are H-1B workers
2) FAILURE TO MAINTAIN A PUBLIC ACCESS FILE FOR EACH LCA.
What is a public access file? The public access file contains the following:
- Copy of Certified LCA
- Proof of compliance with the internal notice requirement for each worksite
- Documents providing the wage rate to be paid to the H-1B non-immigrant
- Full and clear explanation of the system that the employer used to set the “actual wage" the employer had paid (a memo)
- Copy of the documentation the employer used to set up the “prevailing wage"
- Copy of the documents that the employer satisfied the employee notification requirement
- Summary of the benefits offered to U.S. workers in the same occupational classification as the employer’s H-1B non-immigrants
3) FAILURE TO PROVIDE INTERNAL NOTICES, CREATE WAGE MEMORANDA, AND GIVE A COPY OF THE LCA TO THE ALIEN EMPLOYEE.
The company must provide notification that the company is filing an LCA to each employee at all worksites that are associated with an LCA. Without this notification the company will suffer a Level 1 violation, which can amount to $1,000.00 per violation.
4) FAILURE TO FILE AN AMENDED LCA WHEN AN H-1B WORKER CHANGED LOCATIONS.
The H-1B employee’s work location must be determined, and the location must be listed when filing the LCA. This location is the only worksite the H-1B employee is allowed to work.
If the H-1B employee works 30 consecutive days or 60 collective days within a 12-month period at a location not listed on the LCA, the employer must file a new LCA showing that change.
5) FAILURE TO ACCURATELY SELECT THE APPROPRIATE WAGE LEVEL FOR AN H-1B EMPLOYEE.
Wages levels are categorized among level 1 to 4. The H-1B employer must select the proper level for each H-1B employee. Wage level one is for beginning-level workers wherein they are supervised and given specific instructions. Level one wages for all H-1B employees would be a red flag for the USDOL to determine whether such an action was a “willful" violation, which may carry heavy penalties.
Wage level two is for entry-level employees who have knowledge of the job through education and/or experience. Wage level three is for very experienced workers who may be required to manage others. Wage level four employees include wage level three employees, but with even more experience and a higher understanding of the occupation. These employees are usually in higher level management positions.
6) FAILURE TO INCLUDE THE CORRECT WAGE ON THE LCA.
The company must ensure that the correct wage the H-1B employee will be paid is marked.