Sanctions & Penalties against H-1B Sponsors Who Violate Laws
It is extremely important to utilize the services of an
Immigration Attorney when filing an
H-1B. Small errors or oversights
can subject an employer to a
multitude of sanctions and penalties. Our law firm works actively
with our clients to ensure the
maximum amount of protection from
such penalties. In
addition to the fines and penalties
discussed below, willful violators
may be randomly investigated by the USCIS for a period of five years. Click here to for more information about the H-1B.
1. $1,000 fine and one-year prohibition
from filing immigrant and
nonimmigrant visa petitions for
failure to meet strike or layoff
attestation; substantial failure to
meet working-condition attestation
or displacement attestation, posting
or recruitment attestations, or
misrepresentation of material fact
in the LCA;
2. $5,000 fine and two-year prohibition
from filing immigrant and
nonimmigrant petitions for willful
failure to meet any attestation, or
willful misrepresentation of
material fact in the LCA; and
3. $35,000 fine and three-year
prohibition for willful failure to
meet an attestation condition, or
willful misrepresentation of a
material fact in an LCA, in the
course of which failure or
misrepresentation, a U.S. worker is
displaced during the period
commencing 90 days before filing the
application and ending 90 days after
filing the H-1B visa petition.
4. $5,000 and prohibition from filing
petitions for two years for
retaliation against employees who
are ‘whistle blowers’. The whistle
blower provision covers employees,
former employees, and applicants who
disclose information to the employer
or to “any other person” that the
“employee reasonably believes
evidences” is a violation of INA
§212(n). Also protected by the
whistle blower provision are
employees, former employees, and
applicants who cooperate or seek to
cooperate in a proceeding or
investigation concerning the
employer’s compliance with INA
§212(n). The employer violates the
whistle blower provision by
intimidating, threatening,
restraining, coercing, blacklisting,
discharging, or in any other manner
discriminating against a whistle
blower. The ACWIA allows an H-1B
nonimmigrant whistle blower to
continue to work in the U.S.
following retaliation by the
employer.
5. $1,000 penalty for requiring an H-1B
nonimmigrant to pay a penalty to the
employer for leaving the job prior
to a contracted date. Employer may
also be required to return the
amount paid to the H-1B nonimmigrant
unless the amount is purely
liquidated damages.
6. Penalty for benching an H-1B. An
employer is in violation of the LCA
requirement at INA §212(n)(1)(A) for
placing an H-1B nonimmigrant in
unpaid nonproductive status due to a
decision by the employer “based upon
factors such as lack of work,” or
due to the H-1B nonimmigrant’s lack
of a permit or license. A violation
will be found for failure to pay
full-time wages to a full-time
employee, failure to pay a part-time
employee the part-time rate
identified in the visa petition,
failure to pay a new H-1B employee
within 30 days of admission, or
failure to pay a new H-1B
nonimmigrant already present in the
United States within 60 days of the
date the nonimmigrant becomes
eligible to work for the employer.
The prohibition against unpaid
nonproductive status does not apply
to nonproductive time due to
non-work related factors such as a
voluntary request by the
nonimmigrant for an absence like
maternity leave or circumstances
rendering the nonimmigrant unable to
work. The prohibition against unpaid
bench time also does not preclude a
“school or other educational
institution” from paying an annual
salary over fewer than 12 months if
it is an established practice and
the beneficiary agrees to it.
7. $1,000 penalty per violation and one
year’s disbarment from filing H-1B
visas, or $5,000 per willful
violation and two years disbarment
for an employer’s failure to offer a
job to a qualified U.S. worker or
misrepresenting the attestation as
required by INA §212(n)(1)(G).
8.
If an H-1B nonimmigrant
is dismissed before the end of the
period of authorized stay, the
employer is liable for the costs of
return transportation to the
beneficiary’s foreign residence. Any
dismissal is covered, including one
for cause. The exception is when the
beneficiary voluntarily terminates
employment. In addition, the
employer is now required to withdraw
the H-1B petition to ensure that it
is no longer obligated to pay the
required wage for the employee who
has been terminated.
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