The immigration law requires that the employer obtain an approved labor condition application from the Department of Labor prior to filing the H-1B petition, or extension thereof, with the Immigration Service. The purpose of the additional requirement is to protect the U. S. worker.
The labor condition application itself requires the employer to make statements, develop and maintain documentation for public inspection, concerning the following: (1) Wages paid to H-1B non-immigrants and all other individuals with similar experience and qualifications for the job; the prevailing wage for the occupation in the area of employment; (2) Working condition; (3) Strikes or lockouts; and (4) Notice and posting of the labor condition application at the place of employment.
The regulations require that the employer pay the H-1B non-immigrant at least the required wage rate which is the greater of:
- The actual wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment; or
- The prevailing wage level for the occupation in the area of intended employment at the time of filing the application and every twenty-four months thereafter.
The notice of filing LCA must be posted in at least two conspicuous locations at the place of employment where they can be easily seen and read for 10 days. The “place of employment” is the work site or physical location where the work is to be performed.
The “in process” LCA should be obtained for posting. This “in process” version of LCA may be discarded once the posting period is completed. Once the LCA is certified, one abridged copy of the LCA should be kept for the public access file and one full copy to be provided to the employee before they begin working.
The employer may arrange for short-term placements of the H-1B non-immigrant outside of the area listed on the approved LCA without filing a new one. Please contact us to ensure conditions are met.
The employer must pay the H-1B non-immigrant the required wage beginning on the date he enters into employment. Even if the H-1B non-immigrant has not entered into employment, the employer must pay the H-1B non-immigrant the required wage rate listed on the LCA beginning 30 days after he is first admitted into U.S. or 60 days after he changes status in the U.S.
If the H-1B immigrant is not performing work and is in a nonproductive status due to the employer’s decision, the employer is required to pay the H-1B non-immigrant at the required wage rate listed on the LCA. However, the employer is not obligated to pay the H-1B non-immigrant during a period of nonproductive due to a voluntary request by the non-immigrant or if he is rendered unable to work (with limited exceptions based on standard State & Federal Law).
Employers that have been designated as a willful violator and/or who are H-1B dependent (at least 15% H-1B employees) have additional requirements such as non-displacement of U.S. workers and recruitment of U.S. workers. Here technical non-compliance can subject the company to significant penalties. Please contact us for a review of the company’s dependency status and compliance.
For a termination of the employer-employee relationship, the employer must notify USCIS to be relieved of LCA liabilities. This is mainly to stop the salary from continuing to accrue, which occurs if no notice is given to the government, in spite of any notice given to the H-1B employee.
REIMBURSEMENT RULES (Additionally per H regulations if the employer terminates the employee prior to the authorized period of employment, then it is liable for the H-1B employee’s return transportation costs).