H-1B Employer Obligations
Employers undertake specific commitments when employing H-1B workers and, by filing a Labor Condition Application (LCA) and H-1B petition, certify to the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS) that they will adhere to all H-1B requirements. Consequently, H-1B sponsors must fully understand and uphold their obligations as H-1B employers.
Labor Condition Application Attestations
As part of the H-1B petition, H-1B sponsoring companies must file and receive a certified Labor Condition Application (LCA) from the DOL. By submitting an LCA, the H-1B employer is attesting to the DOL that the following conditions will be met:
- The H-1B employer will 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 in the geographic area of employment.
- The H-1B employer will offer the H-1B worker benefits on the same basis as U.S. workers.
- The H-1B employer will not allow the working conditions of U.S. employees to be adversely affected and H-1B employees will be provided with the same working conditions as U.S. employees.
- The H-1B employer will not place any H-1B employees at a work location where there is a strike, lockout or stoppage of work in the occupational classification.
- The H-1B employer will notify workers in the same occupation 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.
- The H-1B employer will provide a copy of the certified LCA to the H-1B employee.
H-1B sponsoring companies are generally considered H-1B dependent if 15% or more of their workforce is H-1B employees (different calculations apply to employers with 50 or less employees). Additional obligations are placed upon H-1B dependent employers and, it is important to note, the Employ American Workers Act categorizes all employers receiving TARP funding as H-1B dependent for new H 1B hires.
In order to determine the required wage, an H-1B employer must know the prevailing wage for the H-1B job. Pursuant to the Immigration and Nationality Act, H-1B employers can obtain a prevailing wage by (1) requesting a prevailing wage from the State Workforce Agency (SWA) in the state where the H 1B job is located; (2) using a salary survey conducted by a trustworthy, independent source; or (3) using another legitimate source of information.
As there are several ways to determine the H-1B job's prevailing wage, the H-1B employer must document the methodology used in their determination. It is noteworthy to mention that employers who obtain a SWA prevailing wage will be granted safe harbor protection for the wage in the event of a compliance investigation.
The H-1B rules require an employer to submit an amended H-1B petition, including new LCA, if there is a material change in the conditions of an H-1B worker's employment. Material changes are not explicitly defined by the USCIS, but typically include changes in the following:
- Location of employment, including the addition of work locations;
- Job description or position, including lateral moves or promotions;
- Wages (generally only decreases);
- Number of hours worked (part-time vs. full-time); and
- Employer identity, including mergers, acquisitions and H-1B transfers.
Although there is no statutorily required timeframe for filing an H-1B amendment, it is recommended that, whenever possible, the amendment be completed before any material changes.
Benching And Termination
H-1B sponsoring companies have an on-going obligation to pay H-1B workers their full, required wage. Failing to pay an H-1B worker their full, required wage during non-productive time is known as "benching" and is strictly prohibited by the H-1B rules. The H-1B employer cannot, based on their decision or an employee's lack of a permit or license, place an H-1B worker in non-productive status with no pay. For example, H-1B employers cannot temporarily layoff or furlough H 1B employees without continuing to pay them their full, required wage.
Accordingly, the obligation to pay an H-1B worker their full, required wage only ceases if the employee's H 1B status expires or the employee is subject to a bona fide termination. If an H 1B worker is terminated prior to the expiration of their H-1B status, the employer is required to provide the employee transportation to their last residence abroad. Moreover, the H 1B employer is barred from accepting reimbursement from an H-1B employee for costs associated with applying for the H-1B visa and, likewise, may not require an H-1B employee to pay a monetary penalty for leaving prior to an agreed upon date.