The H-1B Visa Blog by Siliato and Malyk
Alleged H-1B Abuse In The Limelight
Peri Software Solutions Inc., a New Jersey-based software company, has recently been cited by the Department of Labor for wage law violations in connection with 163 H-1B visa employees. The company is accused of not paying prevailing wages to its H-1B workers, most of whom are software and technology analysts.
Under H-1B regulations, employers are required file a Labor Condition Application (LCA) as part of the H-1B petition for immigrant workers. By doing so, the employer agrees to pay the employee a wage equal to or greater than the prevailing wage specified in the LCA. This wage must be paid even if the H-1B worker falls into nonproductive status as a result of the employer's decision, such as lack of assigned work.
Businesses are held liable for payment of back wages if they fail to pay the prevailing wage or if they fail to comply with the requirements of a bona fide termination, which include notification to the H-1B employee and notification to the U.S. Citizenship and Immigration Services (USCIS). Under these requirements, employers must also offer to pay the cost of the employee's return transportation home.
Peri, which is accused of failing to meet some of the above requirements, has been charged by the Department of Labor for $1,456,422 in back wages.
In addition, Peri Software faces a civil monetary penalty of $439,000 and a two-year debarment from the H-1B visa program due to the "willful nature" of the offenses. Among the offenses, Peri is accused of forcing employees to sign employment contracts and then sue them when those contracts were breached.
According to Secretary of Labor, Hilda L. Solis, "The actions of Peri Software Solutions demonstrates the kind of abuses that our laws are designed to prevent." Solis further commented that "every worker deserves to be paid for his or her work, and the Labor Department is committed to holding these companies that violate our nation's labor laws accountable."
While there have been no final findings against Peri Software Solutions, the above underscores the increased level of enforcement being undertaken under the current administration against purported violators or abusers of the H-1B program. It would behoove all H-1B employers, therefore, to (a) conduct in-house audits of their "H-1B Public Access Files" and (b) properly and timely document with USCIS the termination (voluntary or otherwise) of any H-1B worker prior to the conclusion of his/her authorized period of stay.
For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's "Corporate Immigration Law News" Blog.
Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP