An Attempt in Good Faith
On behalf of an IT consulting client, Klasko attorneys had a “willful violation” charge challenged and overturned in federal court, saving the company almost $200,000 in fines and a two-year debarment of filing immigrant and nonimmigrant petitions for its employees.
The Department of Labor investigated the company due to complaints of underpayment of wages. While DOL found the company paid all appropriate wages in that investigation, it instead charged the company with “willfully violating” the Labor Condition Application requirement to post notices of its LCA filings to its workers at some of its sites.
The company maintained and documented postings and evidence of distribution to each employee of LCAs, including at some third-party sites. The argument was upheld in federal court that with the company, with its documentation of postings and past interactions with DOL investigators, believed in good faith that their procedures were in compliance with regulations and so could not be a “willful” violation. Ultimately, the company was able to settle the dispute.
It is important to remember, while these good faith efforts we recognized, H-1B employers are required to post notices to third-party sites where H-1B employees perform services. Compliance initiatives and enforcement actions have increased dramatically, particularly against IT companies.