An Immigration Law
H-1B visas and
What are the employer
obligations when sponsoring an H-1b petition?
H-1B visa is popularly used by foreign nationals working in
professional and technical positions. This visa enables a
beneficiary to stay in the U.S. for up to six years and apply for
permanent residency in the interim. Because this visa permits a
foreign national to have “dual intent”, there is no conflict
when an H-1B temporary worker applies for a green card. As part of
the H-1B petition, the employing company, serving as the petitioner
of the H-1B petition, must make
a number of attestations. It is important that the employer
familiarize itself with the statements it’s agreeing to so as to
avoid future inadvertent noncompliance and possible penalties.
of the H-1B process involves submitting a Labor Condition
Application (LCA) to the Department of Labor (Form ETA 9035). The
LCA contains a number of important attestations that the employer
agrees to. They are the following:
“actual” versus the “prevailing” wage: Here, the
actual wage is the wage that the company’s compensation department
has set for the position for all employees with similar experience
and skill. Usually, the prevailing wage is a figure provided by the
state’s employment agency which it thinks is an accurate
reflection of what other employers are paying for that position.
The employer must agree to pay the higher of the two wages.
conditions: The employer must state that employing the
foreign national will not adversely affect the working conditions of
other similarly employed workers.
Therefore, an employer who increased working hours and
decreased vacation periods as a result of hiring foreign nationals
would not be in compliance with this attestation.
lockouts, and work stoppages: If any of these develop
after the Labor Condition Application is filed with the Department
of Labor, the petitioning employer must inform the Department of
regarding the LCA: employers must provide notice of the
LCA to its employees through posting the LCA on the premises for at
least ten business days. The posting must be done in two different
access file: H-1B regulations require that the employer
maintain a public access file which
is to be made available for public inspection. The file must contain
documentation showing that the employer is complying with the
requirements for H-1B dependent employers. Employers are considered
to be H-1B dependent if they have less than 25 workers and more than
7 H-1B workers; between 26 to 50 workers and more than 12 H-1b
workers; or more than 50 workers with 15% or more of them being H-1B
foreign nationals. In this case, H-1B dependent employer must
fulfill 2 additional requirements.
of U.S. workers: An H-1B dependent employer must attest
that by hiring a H-1B worker, it is not displacing any U.S. worker
for a similar position within 90 days before or after filing a H-1B
efforts: The H-1B dependent employer must also attest to
making good faith attempts to recruit U.S. workers and offering
prevailing wages for this position.
hiring an H-1B worker, it is important for employers to recognize
the attendant responsibilities that they must shoulder. Although the
requirements are not excessively burdensome, the employer is
required to maintain some paperwork to demonstrate its compliance
with the law. A clear
understanding and fulfillment of these requirements will minimize
possible civil penalties and ensure that the employer will be
permitted to petition for future H-1B workers.
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