DOL cracks down on those who do not comply with LCA Program Rules

Labor Condition Application (LCA) is a document that an H-1B employer files along with the H-1B petition whereby the employer attests to the standards to which it will adhere to including but not limited to paying the wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualification for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater.  While the H-1B is filed with the US Citizenship & Immigration Services (USCIS), the LCA on the other hand is certified by the Department of Labor (DOL), and DOL through its Wage and Hour Division (WHD) has the authority to promote and achieve compliance with the labor standards including but not limited to ensuring/enforcing that H-1B workers are being paid the wages listed on the LCA.

H-1B workers must be paid his/her full salary as stated on the LCA, and these wages must continue even if they are not performing work and are in a nonproductive status “due to a decision by the employer.”  Violations of H-1B program rules can result in complaints and subsequent DOL investigations that in turn can lead to significant financial penalties and fines.

The importance of complying with LCA attestations was most recently underscored in Administrative Review Board (ARB) case, Administrator v. Greater Missouri Medical Pro-Care Providers, Inc. in which the complainant Alena Gay Arat, an H-1B nonimmigrant, filed a complaint alleging that her employer, Greater Missouri Medical Pro-Care Providers, Inc. (Greater Missouri) had failed to pay her the wages required under its LCA for time off due to a decision by the employer, had illegally made deductions from her wages, and had required her to pay an illegal penalty for ceasing employment with the employer prior to a date agreed upon by her and the employer. 

Upon completion of an investigation, the Administrator issued a determination, finding that Greater Missouri had committed numerous LCA violations – relating not only to Ms. Arat, but to dozens of other company non-immigrant employees – including failing to pay the required wages during nonproductive periods of employment, illegally deducting fees, illegally collecting or attempting to collect penalties for early termination of employment, failing to maintain documentation as required by the regulations, and liability for ongoing violations. Greater Missouri was ordered by the Administrator to pay back wages to 45 H-1B employees in the amount of $382,889.

This decision also makes other strong points including: the DOL has extensive powers to conduct wage-and-hour investigations on other employees employed with the employer, based on a single complaint made by one H1B employee; and the employer bears the burden of proof to document that it complied with the LCA attestations.

The rules governing the H-1B program were written for the purpose of protecting the U.S. workers and its violation exposes employers to great financial and legal liabilities. In wake of this, and other similar harsh rulings, it is advisable for employers to reexamine the regulatory obligations placed on them by the USCIS and/or DOL.  We advise employers to consult an experienced immigration attorney who is well versed in this area of law.