Remedies

Regulations authorize the Wage and Hour Division (WHD) to seek compliance and back wage restitution, penalties, debarment and other remedies where appropriate.

Back wages are determined based upon the facts of the investigation and are computed to compensate an employee for a variety of monetary losses where the H-1B worker did not receive free and clear payment of the required wage rate or benefits, or where the worker was required to pay impermissible fees or expenses. More information about this topic is available under the Monetary Issues section of the Advisor. Sometimes remedies require an H-1B employer to post a notice where this requirement was not satisfied prior to the WHD intervention or to restore employment to a U.S. worker.

The statute and the regulations require that civil money penalties (CMPs) and debarment from all immigration programs be imposed when certain provisions are violated. CMPs are based upon the severity of the violation and the number of times the violation recurred or the number of affected employees. These CMPs can be increased or decreased by factors such as:

• The size of the employer;
• Previous history of violations by the employer under the INA and the regulations found at Subparts H and I of 20 C.F.R. 655 );
• Efforts made by the employer in good faith to comply with these provisions;
• The employer's explanation of the violations;
• The employer's commitment to future compliance;
• The extent to which the employer achieved a financial gain due to the violations, or the potential financial loss, potential injury or adverse effect with respect to other parties.

A CMP can be assessed not to exceed $1,000.00 or $5,000.00 or $35,000.00, depending on the violation.

Many violations also result in debarment from all immigration programs ranging from one to two years (three years under the super penalty provision). Such debarment is non-discretionary and based upon the nature and seriousness of the violations.

Debarment of an H-1B employer does not invalidate the existing visas of H-1B workers, but the employer will be unable to seek any extensions or green cards during the period of debarment.

Specific CMPs and terms of debarment are listed by violation at 20 C.F.R.§655.810 (b) and (d).

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