August 2,2010. The U.S. Department of Labor (DOL) announced today that it has debarred Asian Journal Publications from using the H-1B visa program to hire temporary workers for misrepresenting facts about the workers' anticipated roles and wages. The debarment is in effect through July 30, 2012. Asian Journal also agreed to pay $516,500 to its workers in back pay, and a $40,000 penalty to DOL.
According to DOL, the Labor Condition Applications (LCAs) submitted by Asian Journal before thecompany filed petitions for H-1B visas for its foreign workers "stated thatworkers were sought for positions as accountants, reporters, news writers,journalists, business analysts, public relations specialists and financial analysts." However, the investigation revealed that most were working in sales as account executives. In addition to misrepresenting the facts on theapplication, Asian Journal failed to pay the required wage rate and to maintain documentation required under the H-1B visa program. DOL also contends that the employer improperly required the workers to pay visa processing fees.
Both DOL and USCIS are stepping up their H-1B-related enforcement. USCIS,for example, has audited 25,000 H-1B employers in the past year. Many of our clients have been audited. H-1B employers must realize that terms and conditions of employment listed on the LCA and the H-1B petition must be maintained for the duration of the H-1B validitiry period. H-1B employers are also required to to maintain an LCA Public Access File. Any changes in the terms and conditions of employment should be analyzed to determine whether a new LCA must e filed. Material changes, which typically include changes in the hours of employment, job classification, or employment location, trigger the need for a new LCA as well as a new or amended H-1B petition. Non-material changes need to be documented inthe LCA file.
Another important point for H-1B employers is this: the employer is "on the hook" for H-1B wages throughout the validity of H-1B petition, unless the employer has filed, and USCIS has acknowledged, a petition revocation request. Thus, if an employer whose business is slow because of the weak economy who thinks it can save some money by 'benching" an H-1B worker, in reality, is not relieved of its obligations to pay the worker full wages. Same applies to the emploeyr who has terminated the worker. Full wages are due until the H-1B petition is actually revoked.
Posted by Mira Mdivani
Corporate Immigration Attorney
The Mdivani Law Firm
H-1B Training at www.I-9Seminars.com
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