5/24/2010

1) The Investigations of Potential LCA Violations

Investigations related to LCA complaints are primarily handled by DOL district offices. Regional coordinators may also be involved. Part of the funding for the investigations comes from the $500 Fraud Detection and Prevention Fee, paid when filing certain H1B petitions.

Individuals who believe their employers have not properly compensated them, as required by the LCA, can file complaints with the DOL. The DOL does not receive complaints from the USCIS Office of Fraud Detection and National Security (FDNS.) The law does not permit FDNS to generate such complaints with the DOL.

The DOL can request information from the U.S. Citizenship and Immigration Services (USCIS). Additionally, complaints may be referred to the DOL based on information that comes to the U.S. Department of State's (DOS's) attention. Negative information could be detected in the context of visa stamp applications at any of the U.S. consulates, which fall under the DOS.

2) Employees File DOL Complaint after Obtaining Green Card

The DOL mentioned that many foreign nationals wait until they have obtained permanent residence (green card) to file a complaint with the DOL. This is often too late for the DOL to pursue the matter. Presumably, these individuals are afraid to file complaints before they secure permanent immigration status.

The DOL also suggested providing as much documentation as possible in support of the complaint. This will allow them to better assess and investigate the matter.

If the twelve-month timeframe is met, the DOL can expand the investigation to earlier violations, when appropriate. Additionally, if a compliant is opened, the investigation can extend to all H1B workers. Thus, for employers with violations extending to a number of H1B workers, the financial and business consequences of a DOL investigation can be quite significant.

3) DOL Processing Time After Filing Complaint

The DOL indicated that the amount of time needed to investigate LCA complaints varies by local office. The goal is to provide confirmation of the receipt of the complaint and to determine whether an investigation is proper within ten days. It can take up to a year to conclude the investigation.

Individuals who are being unlawfully benched without pay, or who otherwise are not being properly compensated by their employers lack pays tubs. The pays tubs are the standard proof of status often needed to smoothly change employers in H1B status within the United States. (Note that there are options available when the employer has not paid. 

One of those options is filing a complaint and submitting proof of that with the new employer's H1B filing.) Some of these employees file complaints in order to demonstrate that the lack of pay stubs is an employer violation of the obligation to pay, and not a status violation. The DOL indicated that those filing complaints should receive an acknowledgment letter if there is cause to investigate the complaint. This letter generally is issued within 30 days of the complaint.