Considering the growing percentage of foreign-born workers in the American workforce, particularly in professional occupations such as engineering, medicine, information technology and other sciences, many employers find the need to petition or sponsor talented employees for visas that permit hire of these employees (“employment-based visas”). Employers in this situation must be aware of the rights and responsibilities that come with the sponsorship of employment-based visas. The most common employment-based work visa is the H-1B visa, which provides temporary visa status for foreign workers who will hold specialty occupations. A specialty occupation is one which “requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation AND which requires the attainment of a bachelor’s degree or higher in a specific specialty as a minimum for entry into the occupation in the United States.” Here are some of the important rules H-1B employers must follow to withstand government scrutiny:
- All Employers must pay the H-1B employee the prevailing wage for the position. The prevailing wage is determined by salary surveys conducted by reliable sources. Unfortunately, the U.S. Department of Labor (DOL) does not consider most salary surveys reliable unless they meet specific criteria. As a result, as a “safe harbor,” employers can request and use a prevailing wage determination issued by the DOL. If short on time, the employer can use the Online Wage Library on the DOL website instead. In addition to the prevailing wage requirement,employers must offer the same benefits (health, life, disability, and other insurance plans, etc.) to the H-1B employee as they do other U.S. workers.
- Under current regulations, the costs and fees, including attorney’s fees, associated with obtaining H-1B status cannot be paid by the H-1B employee if that payment would reduce the employee’s wage below the actual wage or prevailing wage (whichever is higher). In other words, if an employer requires the employee to pay the expenses associated with obtaining the H-1B, those costs must be deducted from the employee’s wage to determine whether the Employer is paying the higher of the actual wage or prevailing wage. In addition, the attorney fees can not be deducted from the employee’s paycheck.
- “Benching” is strictly prohibited for H-1B employees. That is, employers must pay H-1B employees the required wage for the full amount of hours stated in the H-1B application even if the employee has no assigned work or cannot work temporarily. For example, Employer A hires a computer programmer full-time to provide consulting services to clients. If the employee is temporarily between assignments, Employer A must continue to pay him the agreed upon full-time wages.
- Also, employers must pay H-1B employees no later than 30 days after the employee is enters the U.S. in H-1B status, or 60 days after persons already in the U.S. obtain H-1B status. In addition, if the Employer terminates the H-1B employee’s employment before the H-1B status expires, the Employer must pay the reasonable costs of return transportation of the employee to his or her country and notify the government of the termination. Otherwise, the employer can be responsible for wages after termination.
With the exception of the return transportation requirement (which is enforced only by a private lawsuit by the employee), the DOL is responsible for enforcing the pay issues imposed by the labor condition application (LCA) requirements of the H-1B visa. Consequently, the DOL can conduct an investigation on its own or in response to a complaint (complaints must be filed no later than 12 months after the alleged violation). Because these and other H-1B legal rules are often convoluted (some say second o