LCA/H-1B and I-9 Audits

May 17, 2004

Many of you attended our seminar last week and heard me discuss the recent "crack-down" by the Department of Labor and other governmental agencies on immigration-related compliance issues. This primarily involves increased audit activity with respect to Labor Condition Applications/H-1B compliance as well as adherence to the Form I-9 (employment verification) requirements.

These audits can be very costly. This is particularly the case with respect to LCA/H-1B audits which can lead to very expensive fines and, in the most serious instances, debarment, i.e., the inability to file H-1B petitions for up to one year. Although there are others, the area most closely scrutinized by the Department of Labor—and one which is, perhaps, the easiest to violate—is the need to pay H-1B workers within 95 % of the "prevailing wage rate" for the position. The most common problem areas are mischaracterizing employees as Level 1 (as opposed to Level 2) workers so as to be able to pay a lower wage as well as not adjusting the wage when the employee moves from one location to another (the latter area having a higher prevailing wage rate).

This "stepped-up" enforcement has, in fact, affected several of our clients. So that you can be prepared if faced with such an audit, I strongly encourage you to contact either me or any member of our group about a representative of our firm performing an on-site audit at your facility. This would take no more than one day and could be billed on either an hourly rate basis or, if you prefer, at a reasonable "fixed fee." As I am sure you will agree, it would be much better for our firm to find problems in your LCA/H-1B and I-9 files than a representative of the government.

If you have any questions or would like to further discuss this additional service, please contact me.

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