Professionals: Penalties for Violation of LCA Regulations

Failure to comply with the LCA regulations can result in serious fines and penalties being levied against an H-1B employer. The LCA investigative procedure is primarily complaint driven. If a complaint is filed, the DOL Wage and Hour Administration investigate the complaint.

If a determination is made that an H-1B employer failed to meet a condition, or misrepresented a material fact on a LCA, the H-1B employer may be assessed a civil penalty not to exceed U.S.$1,000 per violation plus potential enhancements. Enhancements such as prosecution for perjury and possible incarceration are possible where intentional material misrepresentation is found.

Further, the DOL may prohibit the H-1B employer from filing any nonimmigrant and immigrant visa petitions for one year. In addition, the DOL may order the petitioner to pay back wages.

If it is determined that an H-1B employer willfully failed to meet any attestation condition, or willfully misrepresented a material fact on the LCA, the H-1B employer may be fined U.S.$5,000 and be precluded from filing any nonimmigrant or immigrant petitions for two years.

Heightened penalties are assessed against H-1B employers determined to be willful failure or willful misrepresentations of a material fact in the course of which an employer displaced a U.S. worker. The fine is U.S.$35,000 and prohibition from filing any nonimmigrant or immigrant petitions for three years.

A U.S.$1,000 penalty per violation may be imposed upon an employer for requiring an H-1B nonimmigrant to pay a penalty for leaving the employer’s employment prior to a date agreed to by the nonimmigrant and the employer. However, the law does authorize liquidated damages clauses in employment contracts.

Additional Actions Causing Penalties

An employer may not intimidate, threaten, restrain, coerce, blacklist, discharge or otherwise discriminate against an employee, including a former employee or applicant, because such individual has disclosed information to the employer or anyone else regarding a potential violation, or for cooperating in an investigation or proceeding. Violators of this “whistle blower” rule may be fined up to $5,000 and prohibited from filing any nonimmigrant or immigrant petitions for two years.

Further, H-1B employers are obligated to pay H-1B nonimmigrants the required wage for the full hours specified on the H-1B petition even if the H-1B worker is in nonproductive status due to a decision by the employer. This includes any time the H-1B employer fails to pay a new H-1B employee within thirty days of admission into the United States in H-B status. This also includes situations when the H-1B employee is already present in the United States and the employer fails to pay the H-1B employee within sixty days when the H-1B employee becomes eligible for employment with the H-1B employer.

Finally, H-1B employers must guarantee they will provide return transportation to the H-1B worker to his/her last country of residence if the H-1B employee is terminated prior to the expiration date of the H-1B petition.