H-1B Compliance

The H-1B program applies to employers seeking to hire foreign nationals as workers in specialty occupations or as fashion models of distinguished merit and ability. The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States.

The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H-1B nonimmigrant workers. Listed below are some of the H-1B compliance requirement which employers should follow.

H-1B employers must file an amended H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding Labor Condition Application (LCA), even if a new LCA is already certified by the U.S. Department of Labor (DOL) and posted at the new work location. Once the H-1B employer properly files the amended H-1B petition, the H-1B employee can immediately begin to work at the new place of employment. The H-1B employer does not have to wait for a final decision on the amended petition for the H-1B employee to start work at the new place of employment.

In following circumstance, the H-1B employer does not need to file ‘amended’ petition:

  1. A move within an “area of intended employment”
  2. Short-term placements
  3. Non-worksite locations

Prospective H-1B employer must obtain a certification from the DOL by filing an LCA. The employer attests on the LCA that H-1B nonimmigrant worker will be paid wages higher of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment or the prevailing wage level for occupational classification in the area of intended employment. Thus, not to undercut wages paid to the comparable U.S. workers, Congress has included a safeguard in the H-1B program.

Regulations require that employers must begin paying LCA-stated wages when the employee “makes him/herself available for work” but not later than 30 days after employee’s entry into the United States or 60 days from the date that USCIS grants a change of status.

An employer must continue to pay an H-1B employee who is not working due to a nonproductive status at the direction of the employer (e.g., benching because of lack of work, lack of a permit or license). This regulation applies even if the H-1B employee is receiving training either provided by the employer or through some other external arrangement at the direction of the employer. Thus, the employer is liable for both nonproductive time as well as productive time once employee becomes eligible for work. Employers who do not pay non-terminated H-1B employees may face civil penalties.

Notice of the LCA must be posted, or where there is a union it must be given to the union, before filing the LCA. The notice may be the LCA itself or a document of sufficient size and visibility that indicates: (1) that H-1Bs are sought; (2) the number of H-1Bs; (3) the occupational classification; (4) the wages offered; (5) the period of employment; (6) the location(s) at which the H-1Bs will be employed; and (7) that the LCA is available for public inspection.

The notice should state where complaints may be filed. Notice must be posted “in a least two (2) conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed” and the notice shall be posted on or within 30 days before the date the labor condition application is filed and shall remain posted for a total of 10 days. 

H-1B employer must maintain a group of documents referred to as a Public Access File (PAF). The PAF must be accessible to interested and aggrieved parties. The PAF must be available at either the employer’s principal place of business or at the worksite.

The PAF must be available within one day after the LCA is filed with all supporting documentation including: a copy of the completed LCA; documentation which provides the wage rate to be paid; a full, clear explanation of the system used to set the actual wage; a copy of the documentation used to establish the prevailing wage; copy of the notice given to the union/employees; and a summary of the benefits offered to U.S. workers in the same occupational classification, and if there are differences, a statement as to how differentiation in benefits is made (without divulging proprietary information).

If an employer terminates an H-1B employee before the end of that employee’s period of authorized stay, the employer is liable for the “reasonable costs” of return transportation for the employee to his or her last country of residence. Immigration statutes and regulations suggest that the employer’s liability is limited to the reasonable cost of physically returning the H-1B employee, and does not extend to the cost of relocating family members or property.