Many employers forget that getting H-1B status is not the end of the regulatory process
Many employers forget that getting H-1B status for their foreign national employee is not the end of the regulatory process but in many respect is only the end of the beginning. Employers need to be cognizant of their continuing regulatory responsibilities to their foreign, temporary workers
H-1B regulatory requirements persist past petition approval and employers should understand their continuing obligations.
The following are some of the important "watch out" issues.
1. Keep Your Public Access Files Handy and Up-to-Date
The U.S. Department of Labor ("DOL") requires H-1B employers to maintain public access files for each of their H-1B Employees. A public access file should contain the following documents, where applicable:
- Copies of the executed Labor Condition Application ("LCA") that was filed with the DOL as part of the H-1B applications process, and the written acknowledgement from the H-1B Employee that it received a copy of the LCA;
- Information on the wage offered the H-1B Employee, including DOL wage guidelines that supported the prevailing wage rate noted in the LCA, the employer's own wage rates, and an explanation of how such rates were determined;
- A copy of the notice of the H-1B position given to the Union's representative or, if there was no Union, the 10-day-notice posted at the employment site;
- Written summary of benefits offered to the H-1B Employee and an explanation regarding any differences between the benefits received by the H-1B employee and standard employment benefits;
- Summary of any transaction affecting the corporate structure of the H-1B petitioner-employer and a sworn statement, where applicable, from a responsible individual committing the new entity to undertake the DOL obligations to the former employer's H-1B Employees;
- Where an employer files as a "single employer" under the IRS code, the employer should include a list of those entities comprising the single employer and a description of the relationships between and among those entities and the H-1B employer; and
- If the employer filed the H-1B petition as an H-1B dependent employer, a list of exempt H-1B employees, i.e. who held at least a Masters degree or commanded a wage of $60,000 or higher per year; and a description of recruitment methods that were used to hire non-exempt H-1B workers.
2. Watch Out for Material Changes in the Conditions of Employment
To meet DOL requirements, the wage offered the H-1B employee must equal or exceed the "prevailing wage". The "prevailing wage" is the wage determined by the DOL to be applicable to the relevant occupation, or the employer's actual wage, whichever wage is higher. DOL prevailing wage guidelines can be accessed through the Foreign Labor Certification Data Center .
Because changes in employment conditions can potentially alter the prevailing wage governing an H-1B position, an employer must be sensitive to any change in employment conditions that could theoretically affect the prevailing wage:
Material changes in the job description such as would move the position into another occupational category, or change the job's skill set, or relocate the employment to another geographic region, could theoretically impact upon the prevailing wage, possibly triggering the requirement that the employer file an amended H-1B petition.
3. Watch Out for Mission Creep
Disconnects between the wage actually paid the H-1B employee and the wage the employee should have received as a function of his assuming increasing responsibilities over time has fueled many an administrative action for back wages and other sanctions.
About the author
Robert Ian Goodman, Esq. represents clients worldwide in the areas of complex commercial immigration and international and domestic commercial law. Mr. Goodman also provides general counsel services to entrepreneurs and start-up businesses and counsels foreign businesses interested in establishing a presence in the U.S. marketplace and U.S. businesses interested in expanding abroad. Mr. Goodman is principal of Goodman Immigration. He is also Special Counsel to the international boutique law firm, Sharma & DeYoung LLP ("S&D"), where he directs the firm's commercial immigration practice. He also co-chairs that firm's Technology and Emerging Companies Practice Group and is a member of S&D's Commercial Litigation and Arbitration Practice Group.Website