U.S. Department of Labor (“DOL”) H-1B audits are just another unfortunate by-product of our uncertain economic times.  Recent experience shows that DOL will not only request to see an employer’s H-1B “Public Access Files” relating to a specified period of time, but will also request other company records to determine whether an H-1B worker was paid the required wage (i.e, the higher of the applicable prevailing wage or the actual wage paid to similarly employed U.S. workers) at all relevant times.  It is critical, therefore, that employers not only insure that their H-1B “Public Access Files” are in order, but also that they are in compliance with USCIS regulations regarding the termination of H-1B workers. 

DOL regulations require an employer to first obtain certification of a Labor Certification Application (“LCA”) from DOL before it may file a petition with USCIS on behalf of an H-1B worker.  The employer must then create a Public Access File within one business day of filing the LCA.  Such file, which must be made available upon request to any member of the public, must be maintained at the employer’s principal place of business or at the place of employment of the H-1B worker(s) employed pursuant to that LCA.  The file must contain, among other things, a copy of the signed and certified LCA, a statement of the actual current rate of pay for the H-1B worker(s), the prevailing wage determination, a memorandum by the employer explaining the actual wage determination and evidence that the notification requirement regarding the filing of the LCA has been met.

Recent DOL H-1B audits also tend to focus on whether H-1B workers have been placed “on the bench” by the employer or whether a discrepancy exists relating to the actual date of the foreign national’s termination of employment.  Employers are cautioned that it is impermissible to “bench” an H-1B worker because of a lack of assigned work.  An employer is obligated to pay the required wage to an H-1B worker who is not performing work if such unproductive status is at the direction of the employer.

With regard to termination of an H-1B worker, USCIS regulations require that the employer notify USCIS when an H-1B worker is terminated prior to the foreign national’s completion of the period of stay authorized by USCIS.  Such notification requirement applies whether the termination is voluntary or otherwise.
 
USCIS regulations also require the employer to reimburse a terminated foreign national (not including family members) for one way travel back to his/her last residence abroad.  Of course, if the foreign national leaves his/her position on his/her own accord or decides to remain in the United States (for another job offer or on account of a filing of a change of status application), there would be no need to pay for any return transportation; evidence of an offer of return transportation would suffice. 
 
Failure to notify USCIS of the termination of an H-1B worker and/or the failure to offer reimbursement of travel to such a terminated employee could result in sanctions, including payment of back wages and, in some cases, debarment from the use of the H-1B program for a period of time.  As such, it is critical that the employer documents in each H-1B worker’s personnel file (with a signed acknowledgement by the foreign national if possible) both (a) the actual date of termination and (b) the offer of return travel reimbursement.

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Post Authored By: Anthony F. Siliato, Esq. of Meyner and Landis LLP