The H-1B is perhaps the most well-known work visa and a cornerstone of business immigration for public and private companies large and small, institutions of higher education, school systems, and hospitals/healthcare facilities. This dual-intent, nonimmigrant visa allows employers to bring professional employees to the US, and also has a clearly defined path for the applicant to seek permanent resident status in the US, making the H-1B highly desirable.
The H-1B process is heavily relied upon and often maligned – and was the target of increased scrutiny under the Trump Administration. While an order to implement a wage-based H-1B lottery has been postponed, we expect reforms to the popular visa to be part of any immigration legislation.
In addition, this wage-based system proposed by the former administration has only been postponed long enough for the USCIS to conduct this year’s H-1B “cap” under the same rules as prior years to avoid frustration and last-minute confusion. Unless the current administration implements sweeping changes, this change could have a big impact on the H-1B process moving forward.
It is important for employers to keep in mind that sponsoring an H-1B employee and going through the H-1B process requires a real commitment to the noncitizen employee, and there are a significant number of requirements to which the employer must adhere or risk serious penalties. In the COVID and post-COVID era, there are even more responsibilities to consider.
As the FY2022 H-1B lottery draws closer, an employer must understand its obligations in hiring an H-1B employee including:
What are an employer’s obligations in hiring an H-1B employee?
Serve as the Sponsor/Petitioner on Form I-129
The employer is responsible for sponsoring the H-1B applicant’s petition on Form I-129 (Petition for a Nonimmigrant Worker), with the US Citizenship and Immigration Services (USCIS). The applicant cannot simply apply on his or her own, and the petition must demonstrate an employer/employee relationship between the company and the applicant/noncitizen employee. There must be a real job opportunity for the noncitizen employee at the company with a set number of hours and a guaranteed wage. For information about the electronic registration process for the H-1B lottery, click here.
Condition Application approved by the US Department of Labor
In addition to the I-129 petition, the employer must also obtain a certified labor condition application from the US Department of Labor (DOL) by submitting Form ETA9035E (LCA) electronically to government. The approved LCA—which must be submitted with the H-1B immigration petition—outlines the obligations of the employer regarding the noncitizen’s employment in the US under the H-1B visa including:
- Pay the appropriate wage
- Generally, the primary issue in an LCA is the “appropriate” wage. In the H-1B context, an employer is required to pay the higher of the actual wage or the prevailing wage. The actual wage is the wage that a company normally pays to similarly situated employees. Per the Administrative Appeals Office, the “prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.” These wages must be paid throughout the duration of the employment under the LCA and is designed to ensure that both H-1B workers and US workers are protected from substandard wages and benefits.
Post LCA at the appropriate worksite
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.
With the onset of Covid-19, many workplaces shifted to full- or part-time remote working. With H-1B workers off-site, a fundamental question is how does a company comply with DOL Notice Requirements? In general, the Department of Labor uses a good faith compliance standard in enforcing both LCA and PERM regulations. In both contexts, regulations indicate that the notice must be visible to U.S. workers. Notices are not visible in an office where no one is working. In the H-1B context, the most conservative approach would be to provide notice to workers electronically, either through the company’s intranet or, if it doesn’t have one, via direct email. The regulations also provide that where the company’s employees lack computer access, hard copies of the notice may be given individually to each worker. This could be done by a hard copy mailing. In such cases, a hard copy posting at an empty worksite would not be necessary.
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.
When is an amended H-1B required when employees are working from home due to COVID? Much of this will depend on the geographic location listed on Form ETA9035E (the LCA). Movement outside the geographic area listed in the original LCA will require certification of a new LCA by the U.S. Department of Labor and will require an amended H-1B petition. The employee may begin work at the new location only after the employer files the amended petition. However, please note that the USCIS has confirmed that movement of the H-1B employee within the same geographic area does not require an amended H-1B petition, so long as all other material terms and conditions of employment remain the same. So, if the employee lives within the same geographic area listed on the LCA, it will not trigger the filing of a new H-1B. What is the “same geographic area”? Generally, the USCIS has defined this as within the same MSA and within the normal 50-mile commuting distance. If it is outside of the MSA listed on the LCA or outside of the 50-mile commuting distance, a new LCA is required, thus requiring an amended H-1B petition. One such way to avoid this issue is to include the employee’s home address on the LCA from the beginning. By listing both the home and work location, the LCA covers both instances and allows the company to avoid the need for amended H-1Bs should another quarantine be required.
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 FordMurray for a complimentary consultation.