4. Be Cognizant of Audit Risks
DOL audits can occur randomly, or in response to a grievance filed by an interested party, including disgruntled employees. As such, employers should be ready if the government comes knocking by keeping their public access files updated and working with immigration counsel to address changes in employment conditions that might trigger the need to file amendments.
5. Termination may not be Termination
When an H-1B employee is terminated, the employer must offer him or her in writing return transportation to the country of origin, and send a written notice of the termination to United States Citizenship and Immigration Services. DOL administrative cases have held that employers who fail to terminate their H-1B employees properly may continue to be liable for wages.
- Employers should make sure that they have complete and up-to-date public access files and engage in internal audits of these files on a regular basis.
- Be careful about “mission creep” and its potential impact upon the DOL’s prevailing wage guidelines for a position.
- Be cognizant of changes to employment conditions that may trigger the obligation to file petition amendments. Any change that could impact upon the prevailing wage stated in the LCA should be evaluated.
- In the event an H-1B employee is terminated, an employer must make sure that the employee is effectively terminated under immigration regulations.
Keep immigration counsel in the loop so that corrective action can be taken as required to avoid regulatory challenges or problems extending immigration benefits.