The U.S. Department of Labor’s (DOL) Wage and Hour Division announced that Maryland’s Prince George’s County Public School system has agreed to pay over $4 million in back wages to more than 1,000 employees as a result of violations of the H-1B program. Because some of the violations were willful, the school system will also pay a civil penalty of $100,000 and be debarred for two years from using immigration programs. This debarment precludes not only filing new immigration petitions, but also extension requests for existing nonimmigrant employees and permanent residence petitions for foreign workers in any employment-based visa category.
DOL investigators found that the school system illegally reduced the wages of the H-1B workers by requiring them to pay fees that the school system was required to pay. H-1B regulations require that employers pay certain fees that cannot be passed on to the H-1B employee, including the $500 anti-fraud fee and the $1,500 (or $750 for small employers) ACWIA fee, which is used to train U.S. workers. Instead of paying these fees and other costs, the school system required the H-1B workers to pay them, which effectively reduced their salaries below the required levels.
H-1B workers must be paid the higher of the prevailing wage for the job in the area of intended employment or the “actual wage,” which is the wage that the employer pays to similarly employed U.S. workers. With limited exceptions, H-1B workers must also receive the same benefits offered to U.S. workers. DOL considers H-1B filing fees and any legal fees associated with filing H-1B petitions to be business expenses that should be borne by the employer. Any payment of these fees by the H-1B employee is considered an improper deduction from the required H-1B wage. It is also important to note that the $500 anti-fraud fee and the $1,500 ACWIA fee, which are paid to the government when filing an H-1B petition, may not be paid by the employee under any circumstance.
The Department of Labor takes wage violations in the H-1B program very seriously and all H-1B employers must be vigilant in complying with the wage requirements. Changes to the H-1B worker’s job or job location, if not properly handled can result in wage violations and any reductions in salary must be carefully assessed to make sure these don’t create violations as well.