Penalties for LCA violations

There are three levels of penalties for LCA violations:

20 C.F.R. § 655.810

Basic violations of LCA provisions or non-willful failure to accurately present material facts:

  1. Possible penalties: Civil monetary penalty of up to $1,000 per infraction; payment of back wages if violation is wage-related; and one-year bar on employer filing H and permanent residence petitions;
    Willful* violations of LCA provisions, misrepresentation of material facts or violation of whistleblower protections
  2. Possible penalties: Up to $5,000 civil monetary penalty; payment of back wages if violation is wage-related; and 2-year bar on employer filing H and permanent residence petitions.
    Willful* violations resulting in displacement of U.S. worker(s)
  3. Possible penalties: Up to $35,000 civil monetary penalty; payment of back wages; and at least a 3-year bar on employer filing H and permanent residence petitions.
    *"Willful failure" means either a knowing failure or a reckless disregard of whether the conduct was contrary to law.

20 C.F.R. § 655.805(c)

In addition, the Wage and Hour Division has the authority to "impose such other administrative remedy(ies)...as the Administrator deems appropriate." This could include, for example, subjecting the employer to the additional attestations required of willful violators of the terms of the LCA.

20 C.F.R. § 655.810(c)

Federal criminal statutes may also apply if a violation involves a knowing and willful submission of false statements to the Federal Government. These statutes provide penalties of up to $10,000 and/or imprisonment of up to 5 years.

18 U.S.C. § 1001; 18 U.S.C. § 1546

During an investigation, DOL will generate a prevailing wage determination using the OES wage survey to determine if the employer is complying with the required rate of pay. If the employer pays less than the required rate, the employee will be owed back wages.

Filing an LCA which misrepresents a material fact

20 C.F.R. § 655.805(a)(1) Federal fraud statutes also apply.

Failing to pay wages as required under § 655.731, including failure to pay wages for certain nonproductive time

20 C.F.R. § 655.805(a)(2)

Failing to provide the working conditions as required under § 655.732

20 C.F.R. § 655.805(a)(3)

Filing an LCA during a strike or lockout in the occupational classification at the place of employment

20 C.F.R. § 655.805(a)(4)

Failing to provide notice of the filing of the LCA as required under § 655.734

20 C.F.R. § 655.805(a)(5)

Failing to accurately specify on the LCA the number of workers sought, the occupational classification, or the wage rate and working conditions

20 C.F.R. § 655.805(a)(6)

Requiring an H-1B worker to pay a penalty for ceasing employment early, unless such payment constitutes liquidated damages permissible under State law

20 C.F.R. § 655.805(a)(12)

"Whistleblower" protection: it is a violation for an employer who has filed an LCA to in any manner discriminate or retaliate against an employee, a former employee, or applicant for employment, because the employee has disclosed information or cooperated in an investigation regarding what the employee reasonably believes is a violation of the LCA rules

20 C.F.R. § 55.805(a)(13)

Otherwise failing to comply in any other manner with any other LCA requirement under the regulations

20 C.F.R. § 655.805(a)(16)