The H-1B program: Mend it, don't end it

prosecution and, thereby, pay H-1B workers less than a legitimate prevailing wage. These false representations, however, can hardly be said to “comply with the law” or be used as evidence that “the prevailing wage regulations can easily be met without paying market wages.” Furthermore, with neither a definition of “market wages” nor a methodology for their appropriate determination, one can only guess as to whether or not properly and legally determined prevailing wages equal a market rate of pay.

Hira’s final lament, and one upon which we can find much common ground, is deficient oversight.

While I do not agree with Hira’s contention that, “H-1B employers are never scrutinized except in the rare case that an investigation is triggered by an H-1B whistleblower” and I am stunned by his endnote claiming that, “[a]lthough there are other ways that an investigation could be triggered, the restrictions on those events make them moot,” deficient oversight is definitely a problem with the H-1B program.

The Administrator of the United States Department of Labor Wage and Hour Division of the Employment Standards Administration is responsible for investigating and determining an employer’s misrepresentation or failure to comply with LCA attestations in the employment of H-1B workers. Complaints may be filed by both “aggrieved” and “non-aggrieved” parties.

An “aggrieved party” is defined as a person or entity whose operations or interests are adversely affected by the employer’s alleged non-compliance with the LCA and includes, but is not limited to:

  1. a worker whose job, wages, or working conditions are adversely affected by the employer’s alleged non-compliance with the LCA;
  2. a bargaining representative for workers whose jobs, wages, or working conditions are adversely affected by the employer’s alleged non-compliance with the LCA;
  3. a competitor adversely affected by the employer’s alleged non-compliance with the LCA; and,
  4. a government agency which has a program that is impacted by the employer’s alleged non-compliance with the LCA.

In my own experience, it is the latter and not the H-1B whistleblower that is most often the source of complaints resulting in an investigation. It is either the USCIS or the Department of State upon debriefing H-1B workers whose actions initiate DOL investigation. Therefore, and notwithstanding specific regulatory protections against retaliatory actions affecting whistleblowers, nearly anyone aggrieved or otherwise can initiate a Wage and Hour investigation against an employer allegedly displacing U.S. workers or paying less than the prevailing wage.

In conclusion,  Hira suggests four specific courses of action:

  1. establishing a labor market test;
  2. guaranteed non-displacement of