Good Faith Defense/Industry Standards Defense

The H-1B Visa Reform Act of 2004 amendments to the INA provide a provision under which an H-1B employer is considered to have complied in good faith with the program requirements notwithstanding a technical or procedural failure to meet such requirements if the employer:

• Made a good faith attempt to comply;
• Voluntarily corrected the failure within 10 business days of having it explained by the Department of Labor or another enforcement agency; and
• Has not engaged in a pattern or practice of willful violations.

This does not apply to failures to meet attestation requirements.

The use of this defense can result in a no violation letter from the Administrator.

These amendments do not absolve the employer of the obligation to pay any back wages owed to an H-1B employee. However, they do provide a waiver of civil monetary penalties (CMPs) and debarment if an employer can demonstrate that its failure to pay the prevailing wage was based upon a calculation consistent with recognized industry standards and practices, provided the employer has not engaged in a pattern or practice of willful violations under the H-1B program.

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H-1B Advisor Glossary of Terms | Wage and Hour Division