A Consulting company based in Suwanee, Georgia, Smartsoft International Inc., has agreed to pay nearly $1 million in back wages and interest to 135 nonimmigrant workers temporarily employed by the company under the H-1B visa program. DOL reached this agreement following a determination by the department’s Wage and Hour Division that the company violated the H-1B program’s rules.

The Wage and Hour Division investigation resulted in the following findings: (i) that some H-1B employees were not paid wages at the beginning of their employment (ii) that others were paid on a part-time basis despite being hired under a full-time employment agreement; and finally (iii) that several employees were paid less than the prevailing wage applicable to the geographic locations where such employees performed their work.

This case demonstrates the basic regulatory protections for H-1B workers inherent in the H-1B program. For example, sponsoring employers are required to attest to the DOL that they will pay wages to H-1B nonimmigrant workers that are at least equal to the actual wages paid to other workers with similar experience and qualifications for the position in question, or the prevailing wage for the occupation in the area of intended employment, whichever is greater. The program also establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers.

With H-1B public access file audits and unannounced site inspections increasingly on the rise, it behooves H-1B employers to conduct self-audits of their public access files and insure that its H-1B workers are being paid the proper wage.

September 2010