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H-1B visas and employer obligations 



What are the
employer obligations when sponsoring an H-1b petition?


The 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. 

Part 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:  

The “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.  

Working 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.  

Strikes, 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 Labor.  

Notice 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 conspicuous locations.  

Public 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 aforementioned requirements.  

Additional 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.  

Displacement 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 petition.  

Recruitment 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.
When 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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