(a) Upon determining that an employer has failed to pay wages
or provide fringe benefits as required by §655.731 and §655.732, the
Administrator shall assess and oversee the payment of back wages or fringe
benefits to any H-1B nonimmigrant who has not been paid or provided fringe
benefits as required. The back wages or fringe benefits shall be equal to the
difference between the amount that should have been paid and the amount that
actually was paid to (or with respect to) such nonimmigrant(s).
(b) Civil money penalties. The Administrator may assess civil money
penalties for violations as follows:
(1) An amount not to exceed $1,000 per violation for:
(i) A violation pertaining to strike/lockout (§655.733) or displacement
of U.S. workers (§655.738);
(ii) A substantial violation pertaining to notification (§655.734),
labor condition application specificity (§655.730), or recruitment of U.S.
workers (§655.739);
(iii) A misrepresentation of material fact on the labor condition
application;
(iv) An early-termination penalty paid by the employee
(§655.731(c)(10)(i));
(v) Payment by the employee of the additional $500/$1,000 filing fee
(§655.731(c)(10)(ii)); or
(vi) Violation of the requirements of the regulations in this subpart I and
subpart H of this part or the provisions regarding public access
(§655.760) where the violation impedes the ability of the Administrator to
determine whether a violation of section 212(n) of the INA has occurred or the
ability of members of the public to have information needed to file a complaint
or information regarding alleged violations of section 212(n) of the INA;
(2) An amount not to exceed $5,000 per violation for:
(i) A willful failure pertaining to wages/working conditions
(§§655.731, 655.732), strike/lockout, notification, labor condition
application specificity, displacement (including placement of an H-1B
nonimmigrant at a worksite where the other/secondary employer displaces a U.S.
worker), or recruitment;
(ii) A willful misrepresentation of a material fact on the labor condition
application; or
(iii) Discrimination against an employee (§655.801(a)); or
(3) An amount not to exceed $35,000 per violation where an employer (whether
or not the employer is an H-1B-dependent employer or willful violator)
displaced a U.S. worker employed by the employer in the period beginning 90
days before and ending 90 days after the filing of an H-1B petition in
conjunction with any of the following violations:
(i) A willful violation of any of the provisions described in
§655.805(a)(2) through (9) pertaining to wages/working condition,
strike/lockout, notification, labor condition application specificity,
displacement, or recruitment; or
(ii) A willful misrepresentation of a material fact on the labor condition
application (§655.805(a)(1)).
(c) In determining the amount of the civil money penalty to be assessed, the
Administrator shall consider the type of violation committed and other relevant
factors. The factors which may be considered include, but are not limited to,
the following:
(1) Previous history of violation, or violations, by the employer under the
INA and this subpart I or subpart H of this part;
(2) The number of workers affected by the violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made by the employer in good faith to comply with the provisions
of 8 U.S.C. 1182(n) and this subparts H and I of this part;
(5) The employer's explanation of the violation or violations;
(6) The employer's commitment to future compliance; and
(7) The extent to which the employer achieved a financial gain due to the
violation, or the potential financial loss, potential injury or adverse effect
with respect to other parties.
(d) Disqualification from approval of petitions. The Administrator
shall notify the Attorney General pursuant to §655.855 that the employer
shall be disqualified from approval of any petitions filed by, or on behalf of,
the employer pursuant to section 204 or section 214(c) of the INA for the
following periods:
(1) At least one year for violation(s) of any of the provisions specified in
paragraph (b)(1)(i) through (iii) of this section;
(2) At least two years for violation(s) of any of the provisions specified
in paragraph (b)(2) of this section; or
(3) At least three years, for violation(s) specified in paragraph (b)(3) of
this section.
(e) Other administrative remedies. (1) If the Administrator finds a
violation of the provisions specified in paragraph (b)(1)(iv) or (v) of this
section, the Administrator may issue an order requiring the employer to return
to the employee (or pay to the U.S. Treasury if the employee cannot be located)
any money paid by the employee in violation of those provisions.
(2) If the Administrator finds a violation of the provisions specified in
paragraph (b)(1)(i) through (iii), (b)(2), or (b)(3) of this section, the
Administrator may impose such other administrative remedies as the
Administrator determines to be appropriate, including but not limited to
reinstatement of workers who were discriminated against in violation of
§655.805(a), reinstatement of displaced U.S. workers, back wages to
workers who have been displaced or whose employment has been terminated in
violation of these provisions, or other appropriate legal or equitable
remedies.
(f) The civil money penalties, back wages, and/or any other remedy(ies)
determined by the Administrator to be appropriate are immediately due for
payment or performance upon the assessment by the Administrator, or upon the
decision by an administrative law judge where a hearing is timely requested, or
upon the decision by the Secretary where review is granted. The employer shall
remit the amount of the civil money penalty by certified check or money order
made payable to the order of "Wage and Hour Division, Labor." The
remittance shall be delivered or mailed to the Wage and Hour Division office in
the manner directed in the Administrator's notice of determination. The payment
or performance of any other remedy prescribed by the Administrator shall follow
procedures established by the Administrator. Distribution of back wages shall
be administered in accordance with existing procedures established by the
Administrator.
(g) The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended
(28 U.S.C. 2461 note), requires that inflationary adjustments to civil money
penalties in accordance with a specified cost-of-living formula be made, by
regulation, at least every four years. The adjustments are to be based on
changes in the Consumer Price Index for all Urban Consumers (CPI-U) for the
U.S. City Average for All Items. The adjusted amounts will be published in the
FEDERAL REGISTER. The amount of the penalty in a particular case will be based
on the amount of the penalty in effect at the time the violation occurs.
[65 FR 80236, Dec. 20, 2000]