Viable Excuses/Defenses

As an employer it is important to know in what reasons can be considered as viable excuses for not having complied with the DOL.

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What are some viable reasons for not having complied with the LCA or any other factor that has raised scrutiny from the Department of Labor?

An H-1B employer will be considered in compliance with the DOL if said employer can properly utilize either of two defenses:

  • “Good Faith Compliance Defense” in regards to a technical or procedural failure; or
  • “Recognized Industry Standard and Practices Defense” for a prevailing wage violation.

What is the “Good Faith Compliance Defense”?

This defense is where the employer has proven to have made a good faith attempt in complying with the H-1B program. Another possible way is if the employer has voluntarily corrected the violation(s) within 10 business days of being advised by an enforcement authority (Department of Labor or another agency).

What is the “Recognized Industry Standards and Practices Defense”?

The “Recognized Industry Standards and Practices Defense” is used when an employer is accused of a prevailing wage violation. The employer can utilize this defense if they can prove that the wage was calculated in line with industry standards and practices.

Are these “cure-all” defenses?

No, they are not. If the H-1B employer has engaged in a pattern or practice of willful violations, then:

  • The “good faith compliance defense” will not work for a technical or procedural failure.
  • The “recognized industry standards and practices defense” will not work for a prevailing wage violation

Civil Money Penalty Inflation Adjustments

No, they are not. If the H-1B employer has engaged in a pattern or practice of willful violations, then:

  • The “good faith compliance defense” will not work for a technical or procedural failure.
  • The “recognized industry standards and practices defense” will not work for a prevailing wage violation
Willful violator

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