You went through the whole process of hiring your H1-B employee. It was tough, it was long, but you are done! Or are you?

An H1-B audit is conducted by the DOL Wage and Hour Division to ensure that the H1-B employer complies with the H1-B laws and regulations.

Most audits occur due to employee complaint. Audits can also be a result of US embassy referral, credible source investigations or a random audit of a willful violator.

As part of the audit the employer usually receives a letter requesting the production of documents in the public access file together with wage and immigration records.

There are two different types of documentation that the DOL recognizes:

1. Documentation that must be made available to the public on the public access file.

2. Documentation which must be made available to DOL investigators upon request.

It is important for employers to differentiate between the two types of documentation and only put in the public access file what needs to be there by law.

It is the company’s responsibility to prove that they have complied with LCA regulations. The DOL may also investigate other H1-B violations during the audit. They can examine if the company followed notice requirements, if they paid the H1-B employee the correct wages or if they displaced a US worker when hiring the H1-B worker.

After receiving the letter, a representative from the DOL will visit the company on the specified date to audit the company. The officer will inspect the company’s records and make copies of them. The officer can also question employees. By law, the company must cooperate.

The longer the investigation takes the more likely it is that the DOL is building a case against the company. Therefore, it is important that the company resolve any problems before the representative comes.

Once the officer finishes the investigation, he will issue an “Administrator’s Determination letter”.

If the investigator decides that the company is guilty of not complying with the H1-B regulations and laws, he may set forth penalties. The best way to avoid a fine is for the company to correct its mistakes. The company can accept the fines or request an administrative hearing and fight them.