What are an employer’s obligations when H-1B employment starts?
The H-1B visa is a nonimmigrant visa suitable for individuals who have a bachelor’s degree or the equivalent and a job offer from a sponsoring employer in a specialty occupation that is related to their field of study. Employers who sponsor foreign nationals for H-1B visas are required to file petitions with the U.S. Department of Labor and the U.S. Citizenship & Immigration Services and must make several attestations as part of the process. Employers must provide notice that they are filing the H1B application at the appropriate worksite, guarantee that they will pay the employee the local prevailing wage (or higher), agree to provide working conditions for nonimmigrants which will not affect the working conditions of similar employees and must confirm that there is no strike, lockout or work stoppage in the H1B employee’s occupation at the worksite.
While the H-1B employee remains with the employer, the employer must keep a Public Access File at the employee’s worksite or the principal place of business that contains information about the company and the H-1B position. This file must be available to the public and should contain the following information:
- A certified Labor Condition Application (“LCA”) approved by the U.S. Department of Labor and signed by the employer
- A copy of the information utilized to establish the prevailing wage for each LCA. This may consist of a copy of a prevailing wage determination from the U.S. Department of Labor, or alternately, of a copy of a wage survey meeting the requirements of the DOL.
- A wage memorandum, describing the system used by the employer to establish the wage paid to each covered worker. This should consist of a full, clear explanation of the system used by the employer to set the actual wage that is paid to all employees in the occupation held by covered workers, including a schedule of any periodic increases. Such documentation should identify each covered worker’s wage, and should be updated as increases in salary are given.
- A benefits memorandum detailing benefits offered to U.S. workers in the same occupation as that in which the H1B worker is engaged. This should include a summary of the benefits that were offered to U.S. workers in the occupations presently held by all H1B workers and an explanation of differentiation in benefits, if not all employees were offered or received the same benefits.
- A statement acknowledging the company’s compliance with the LCA notice requirement
- Evidence that the employer has provided the H1B employee with a copy of the Labor Condition Application
- A list of entities included as a “single employer” for H1B workers
If the company undergoes any corporate changes it will need to add additional information to the Public Access File, including a sworn statement by the successor company that confirms its acceptance of all liabilities of its predecessor, a list of H1B workers who were transferred to the new company, copies of each affected LCA and a list of LCA numbers and effective dates, a description of the new company’s wage system and proof of the new company’s FEIN.
What are an employer’s obligations when H-1B employment ends?
If the H-1B employment ends prior to the expected end date, the employer must send a letter to USCIS explaining that the employee no longer works for the company and withdraw the Labor Condition Application filed with the Department of Labor. To contact USCIS, the employer should send a certified or otherwise traceable letter to the USCIS Service Center that approved the H-1B, providing the filing receipt number, names of employer and employee, the date of resignation and a request to revoke the H-1B petition. It is important to notify USCIS in a timely manner to avoid any potential liability for unpaid wage claims. The certified Labor Condition Application can be withdrawn either through the iCert Portal System or through email or regular mail. If the employer terminates the employee, the employer is required to pay for the employee’s “reasonable costs” of return transportation to their last country of residence. To meet this requirement the employer can offer to directly purchase a plane ticket or offer a cash payment. If the employee does not accept the funds, the employer should get a signed statement from the employee indicating that they declined acceptance of the cash or ticket.
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Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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