Compliance Guide For H-1B Employers
H-1B employers have a myriad of obligations with regards to their H-1B employees before, during and after their employment. It is important for H-1B sponsors to stringently uphold their H-1B commitments to avoid potentially severe penalties from the United States Citizenship and Immigration Services (USCIS) and/or the Department of Labor (DOL), including debarment from the H-1B program. The following is a series of H-1B checklists to help employers ensure they are in compliance with the H-1B regulations at all times.
Step 1: Obligations Prior to Hiring an H-1B Employee
An H-1B employer must make certain of the following prior to hiring an H-1B worker:
- The H-1B job qualifies as a specialty occupation.
- The H-1B worker meets the qualifications for the H-1B job, including the completion of a Bachelor's degree or higher in a field related to the occupation and, if required, the appropriate state or local licenses.
- The prevailing wage for the occupation in the geographic area of employment has been calculated or requested from the State Workforce Agency.
- A Labor Condition Application (LCA) covering the H-1B worker has been submitted to and certified by the DOL.
- The USCIS has approved the employer's H-1B petition.
- Workers in the same occupation have been notified of the intention to hire an H 1B worker, either by notifying the appropriate bargaining representative or, if no bargaining representative exists, by posting conspicuous notices at the place of intended employment.
Step 2: Obligations While Employing an H-1B Employee
While employing an H-1B worker, H-1B sponsoring companies must always do the following to remain in compliance with H-1B requirements:
- Provide a copy of the certified LCA to the H-1B employee.
- Pay the H-1B worker the required wage which is the greater of the actual wage paid by the employer to similarly situated workers or the prevailing wage for the occupation.
- Offer the H-1B worker benefits on the same basis as U.S. workers.
- Ensure the working conditions of U.S. employees are not adversely affected and provide H 1B employees with the same working conditions as U.S. employees.
- Maintain a public access file for each employee in H-1B status, located either at the employer's principal place of business or the place of employment
- Keep payroll records for all employees in the H-1B worker's occupational classification.
- Notify the USCIS of any material changes in the terms and conditions of the H-1B worker's employment.
Step 3: Obligations After Employing an H-1B Employee
H-1B employers have continuing obligations after the termination or departure of an H 1B worker including:
- Promptly notifying the USCIS of the H-1B employee's termination.
- Providing one-way transportation for the H-1B employee (not including H-1B dependents) to the place of their last residence abroad if they are not staying in the U.S. to change status or complete an H 1B transfer to another employer.
- Continuing to maintain a public access file for each employee in H-1B visa status for one year beyond the H-1B worker's last day of employment under the LCA.
- Continuing to keep payroll records for all employees in the H-1B worker's occupational classification for at least 3 years.
Step 4: H-1B Employer Prohibitions
In addition to the affirmative obligations H-1B employers have before, during and after an H-1B worker's employment, H-1B employers should never engage in the following:
- Misrepresenting any information to the USCIS or DOL on the LCA or H-1B petition.
- Requiring or accepting repayment from the H-1B employee for the H-1B visa filing fees.
- Making any material changes to an H-1B employee's job duties or work location without filing a new LCA and/or an H-1B amendment.
- Charging an H-1B worker a penalty for not remaining employed with the H-1B sponsoring company for a certain period of time.
- Placing any H-1B employee at a work location where there is a strike, lockout or stoppage of work in the occupational classification.
- Benching an H-1B employee by failing to pay the H-1B employee their full H-1B salary during non-productive time due to a decision by the employer.
- Employing an unlicensed H-1B employee in an occupation that requires a state or local license.