Audits

Employers sponsoring H-1B visa holders are facing more and more scrutiny.  In today’s uncertain economic climate, it is more important than ever for employers to make sure that they are complying with federal regulations.  Employers who hire foreign national workers may be subject to various government audits.  The Employer can be audited by the U.S/ Department of Labor [DOL], Immigration Customs Enforcement Division [ICE].  The Internal Revenue Service [IRS] has recently announced that they will start conducting audits for payments made to foreign nationals who are temporarily employed by a U.S. employer.

 The U.S. Department of Labor (DOL) is conducting and scrutinizing companies that hire H-1B workers more closely than ever.  A DOL audit can be the result of a random investigation or a complaint by a disgruntled employee.  Each employer is required to maintain a Public Access File for each H-1B beneficiary it has hired.  Per the regulations, DOL is able to audit the file and payroll records to ensure that the alien worker is being paid the correct wage.  Even in the best case scenario, a government audit of your company can result in loss of time and place a huge burden on your HR department.  Audits can often stretch out for several months or even years.

Many employers do not realize that even paper violations may hefty fines associated with them.  If violations are found an employer can be liable for any of the following: back wages to an employee, civil penalties, debarment from the H-1B program, random audits by DOL for five years and even criminal penalties. 

At Bhuchar Law we advise our clients to take a more proactive approach by having experienced outside counsel to conduct internal audits of company files.  A self-audit can allow an experienced professional to come in and advise you on the recordkeeping procedures that violates DOL regulations.  Our internal audits often disclose material misrepresentations made on the LCA, improper prevailing wage levels, benching, incomplete public access files, lack of LCA postings and non compliance with the LCA attestations.  Once discovered, the employer can move forward to change company policy and procedures in order to comply with the regulations.  If a company does this for the first time when they are audited then they may face huge fines or an administrative burden.  By taking a proactive approach and having an internal audit the company can save themselves time and money in the long run.  More importantly, if audited by the government you can demonstrate that you are making a good faith effort to try and comply with the regulations. 

ICE is responsible for worksite inspections and audits of I-9 forms.  The I-9 form is used to verify the eligibility of an employee to work in the U.S. on the Form I-9.

Audits of Permanent Electronic review Management (PERM).  Employers who have filed Green Card applications under the PERM program may be audited by DOL.