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September 18, 2001 - Recent Department of Labor (DOL) statistics show significant increases in complaints and penalties related to the employment of highly skilled foreign workers under the H-1B program. The 206 H-1B complaints that the DOL received in the first ten months of fiscal year 2001 far exceeded the 140 complaints filed during all of FY 2000, the statistics showed. There were 135 complaints in FY 1999 and 63 in FY 1998. It is difficult to definitively determine the cause for the increase in complaints. In part, the increase in complaints may relate to an enlarged pool of H-1B workers. Due to emergency legislation passed last year, the annual cap on H-1B visas grew from the original level of 107,500 for FY 2001 to 195,000 for that year and the next two. Earlier legislation signed in 1998 had increased the annual number of work visas under the program from 65,000 to 115,000 in FY 1999, 115,000 in FY 2000, and 107,500 in FY 2001. The upsurge could also relate to a tenuous employment market, where some H-1B and American workers face layoffs. The number of DOL cases involving complaints by foreign workers that they have been underpaid is clearly on the rise. DOL regulations require that companies pay foreign workers holding H-1B visas at the same rate as similarly employed U.S. workers. The DOL reported that the back wages found due to H-1B employees in FY 2000 totaled slightly more than $1.6 million for 339 workers compared with about $360,000 for 206 workers the previous fiscal year. Between October 1, 2000, and July 31, 2001, 76 individuals were due more than $762,000 in back wages, the statistics showed. Companies are advised to take this opportunity to ensure complete compliance with DOL requirements. Berry, Appleman & Leiden recommends that all employers of H-1B workers carefully review their Labor Condition Application public access files, as well as corollary compliance records. Companies that have not recently conducted a full LCA compliance audit may wish to consider doing so to limit their exposure and liability to civil fines and possible debarment from the H-1B program. |
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