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Understanding H-1B Employer Obligations

When it comes to utilizing a global workforce through business immigration, the H-1B visa can be one of the most beneficial options for employers. This dual-intent, non-immigrant visa allows employers to bring skilled and highly educated employees to the US who will help their business, and also allows the applicant to seek permanent resident status in the US, making the H-1B highly desirable.

We have previously discussed in detail the H-1B process, as well as some benefits and challenges of this visa, which you can read by clicking here.

It is important for employers to keep in mind that sponsoring an H-1B visa is no small commitment, and there are a significant number of requirements to which the employer must adhere or risk serious penalties.

In today’s blog, we will detail some of the key employer obligations in hiring an H-1B employee.

Sponsor employee’s petition

The employer is responsible for sponsoring the H-1B applicant’s visa application, form I-129 (Petition for a Nonimmigrant Worker), with US Citizenship and Immigration Services (USCIS). The applicant cannot simply apply on his or her own, and the application must demonstrate an employer/employee relationship between you and the applicant.

Labor certification approved by Dept. of Labor

In addition to the I-129 petition, the employer must also obtain a labor certification approval from the US Department of Labor (DOL) by submitting a Labor Condition Application (LCA). The approved LCA—which must be submitted with the H-1B immigration petition—will be the basis for the H-1B employee’s right to work in the US.

Pay prevailing wage

Employers are obligated to pay what is known as a “prevailing wage” to all H-1B employees, which will be based on a qualifying wage survey that is certified by the DOL. This is to ensure that the employee is paid fairly and to help prevent foreign employees from taking the jobs of equally qualified US employees. The employer must pay at least the prevailing wage through the employment relationship with the H-1B worker.

Post LCA at worksites

The Labor Condition Application of the H-1B employee must be posted by the employer at any and all worksites at which the employee will work. If the LCA is not posted and USCIS conducts an H-1B site visit, you could arouse suspicion of immigration fraud and face other issues with the government.

Update governmental agencies of material changes

If there are any material changes to the employment relationship with the H-1B worker, employers are obligated to notify all pertinent government agencies including USCIS and the DOL. A material change could include things like changes in the worker’s worksite or if their salary drops below the prevailing wage for any reason.

Notify governmental agencies of termination

If you terminate the employment of your H-1B worker, you must notify USCIS and the DOL of the termination. Read our previous blog on the proper steps to terminate an H-1B employee.

Pay for transport home

If your employment relationship with the H-1B employee ends for any reason, the employer is also required to cover the costs of transporting the H-1B worker back to his or her home country.

If you are interested in sponsoring a petition for H-1B employees, or you need assistance with maintaining compliance in any aspects of your business immigration strategy, please contact the FordMurray law office today.