H-1B Audit

DON'T GET CAUGHT WITH YOUR LCA PANTS DOWN: U.S. Department of Labor (DOL), Wage and Hour Division, Continues to Conduct H-1B Audits and Investigations.

Employers who hire H-1B professional and specialty occupation employees are required by law to submit a completed Labor Condition Application (LCA) on DOL Form ETA 9035E in the manner prescribed by the regulations. By completing and signing the LCA, the employer attests to several items called "attestations". These attestations concern the employer's responsibilities to the H-1B nonimmigrant employee, including the wages, working conditions, and benefits to be provided to the potential H-1B worker that will join the employer's pool of employees.

One important aspect of the LCA process is that the application is valid to a specific place or places - geographically location - designated on the LCA and addressed by certain prevailing wage conditions. Thus, it is to be noted that the H-1B employee for whom this LCA process is filed and approved should be employed within the designated areas. In order to enforce compliance of the LCA, the U.S. DOL continues to audit H-1B employers (both those that are H-1B dependent and those that are not).

Audits are usually triggered either when a current or former employee files a complaint with the DOL or when the DOL targets a specific industry for investigation. In some cases, the State DOL will conduct an investigation and information may be shared between the State and the Federal DOL authorities. In other cases, the Office of Federal Contract Compliance (OFCCP) may also conduct an Audit and then, depending upon the documentation provided by the employer, share the information with the Federal DOL authorities.

Most DOL investigations begin with an initial audit letter from the DOL officer. The Wage and Hour Division of the U.S. DOL is the section of the DOL that investigates the LCAs that are prepared and submitted by the employers for the H-1B employee. The DOL officer may meet or speak by telephone with the company (or one of its authorized representatives) and obtain an initial statement. Following a letter, an LCA investigation may commence and it may take several years to complete.

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