by Ari Sauer
The H-1B is a nonimmigrant temporary visa classification, used for employees in specialty occupations, which HR managers commonly run into. It is a very useful visa for employers, but has specific requirements and expectations. This is a brief overview of some of the employer’s obligations. It is highly recommended that HR managers consult with an experienced immigration lawyer when considering sponsorship of an employee for an H-1B visa.
Eligibility for the H-1B visa
The H-1B is available for employees in specialty occupations, those that require at least a four-year Bachelor’s degree in a specific field of study, or an equivalent combination of experience and education, to be able to perform the duties of the position. Examples include architects, engineers, scientists, teachers, accountants, many business manager positions, and many IT positions. Often foreign national employees that are hired as recent graduates, with Optional Practical Training (OPT) work authorization, look for employers that will sponsor them for an H-1B visa. H-1B status is initially granted for a 3-year period, and can be extended for an additional three years. Extensions beyond six years are possible where the employee has been sponsored by an employer toward becoming a U.S. Permanent Resident. The H-1B is a nonimmigrant, or temporary, visa status. However, it is one of the few nonimmigrant statuses that allow the employee to have “dual intent”, meaning the intent to apply for Permanent Residence and remain in the U.S. This is a main reason why H-1B status is preferred by both employers and employees over other visas.
Employer obligations with the H-1B visa
Employers sponsoring an H-1B employee must agree to several conditions of employment as part of the petition process. The employer agrees to these conditions when filing a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL), which must be posted at the location of employment prior to filing the H-1B petition with USCIS.
Required salary and benefits
The employee’s salary cannot be less than the prevailing wage, as determined by the DOL for the occupation and location of employment, or the wages paid to other similarly-situated employees of the company in the same position, whichever is higher. Furthermore, the employee must be given the same benefits and working conditions as similarly-situated employees of the company.
The company must pay the H-1B employee the required wage rate, as listed on the LCA, for as long as the employee is employed in H-1B status pursuant to that LCA. If the employer files an extension of the H-1B or must amend the LCA, the employer must pay the new wage as determined for the new LCA. The H-1B employee must continue to receive the required salary even when the company reduces the salaries of other similarly-situated employees. Failure to pay the required wage could create a liability for the company, as the DOL can award back-pay to H-1B employees where companies fail to pay the required wage.
With limited exceptions, the employer must pay all costs associated with filing the LCA and H-1B petition, including attorney fees and filing fees. The employee may not reimburse the employer for these costs and the employer may not take these costs out of the employee’s salary.
Employer may not bench employee
The employer may not put the employee on an unpaid leave of absence, or “bench” the employee. The employer must continue employing the H-1B employee throughout the entire period covered by the H-1B petition and pay the required wage unless the employer terminates the employment, following the requirements described below.
Employment must not adversely affect other employees
A company cannot sponsor an H-1B employee where the employment of the H-1B employee will adversely affect the working conditions of similarly-employed workers or where the company has experienced a recent strike, lockout or work stoppage.
Maintaining a public access file for each H-1B employee
The employer must maintain a public access file, which must be made available to the public upon request. The employer must keep the following in the public access file: 1) a signed copy of the LCA; 2) a statement clearly explaining the system the employer uses to set the actual wages paid to employees (i.e., a summary of employer’s pay system or scale); 3) documentation of the appropriate prevailing wage for the position and work location; 4) a statement indicating that the LCA has been posted as required at the place of employment; and 5) a description of the benefits offered to company employees. The public access file should be kept separate from the employee’s personnel file.
Additional record-keeping requirements
The employer must also keep the following records, kept separate from the public access file, which need not be made available to the public upon request: 1) payroll records regarding all of the company’s employees in the same occupation and location as the H-1B employee; 2) a calculation of the actual wage rate paid to the H-1B worker, using the employer’s pay scale system described in the public access file; and 3) the raw data backing up the prevailing wage determination included in the public access file.
Terminating H-1B employee
If the employer terminates an H-1B foreign national’s employment before the expiration of the H-1B petition, the employer must: 1) notify the DOL and USCIS of the termination; 2) clearly notify the employee of their termination; and 3) pay for travel expenses for the employee’s return to their country. It is recommended that the notice of termination and offer to pay travel expenses be provided to the employee in writing, as a record of compliance with these requirements. The employer’s obligation to pay the employee the required wage continues until these three obligations have been met.