When employers hire H-1B workers, the employers are agreeing to take on serious obligations. Failure to meet these obligations can result in heavy fines and other penalties, so it is of the utmost importance that employers know what they are getting into before beginning the process of hiring an H-1B worker.
Obligation to Maintain a Public Access File
Employers are obligated to maintain a separate “public access file” for each H-1B worker. The employer must create the public access file as soon as the employer files the LCA with the DOL. The employer must store the file at its place of business for the entire duration of the H-1B employment, and for one additional year after the employment ends. The file must include the following documents:
- hard copy of the signed certified LCA
- proof of the prevailing wage for the worker’s position
- a clear explanation of how the employer determined the prevailing wage
- proof that the employer complied with the LCA attestation of informing the union/other workers of the H-1B worker’s hire, and
- summary of the benefits offered to U.S. workers in the H-1B worker’s position.
Obligation to Pay the H-1B Worker the Prevailing Wage
The employer is also obligated to pay the H-1B worker the “prevailing wage.” The prevailing wage is the wage that is paid to employees in the H-1B worker’s position and area of employment. The prevailing wage for the same position can differ from location to location. For example, the prevailing wage for a cardiologist working in the metropolitan area of Los Angeles, California will be very different from the prevailing wage for a cardiologist working in the rural area of El Paso, Texas.
It is critical that the employer pay the H-1B worker the correct prevailing wage during the entire time of the worker’s employment. If the employer fails to meet this obligation, the employer will be required to pay the worker back wages, and can also incur other significant penalties and fines.
Obligation to Inform USCIS of Changes in Employment
Employers are under an ongoing obligation to inform USCIS of any “material changes” in the H-1B worker’s employment. Unfortunately, immigration law does not define a “material change.” Any number of changes could be seen as material, such as changes in the worker’s job duties, job location, or position in the company’s hierarchy. Employers should use their best judgment and consult an immigration attorney in deciding whether or not a change is “material.”
If a material change occurs, the employer must inform USCIS by filing an amended I-129 petition. The amended I-129 should contain all of the documents that the original I-129 contained, as well as an explanation of the material change and the reason for the change.
Obligation to Treat the H-1B Worker Fairly
U.S. labor and immigration laws prohibit employers from discriminating against workers on account of the workers’ national origin. An H-1B worker must be treated the same as all of the employer’s U.S. workers. The employer must provide the H-1B worker with the same benefits (stock options, sick leave, insurance, and so forth) as those provided to U.S. workers, and H-1B workers cannot be passed over for promotions or other rewards on account of their H-1B status.
Obligation to Pay for the H-1B Worker’s Return Trip Home
Immigration law requires the employer to pay for the reasonable costs of transporting the H-1B worker to his or her home country if the employer dismisses the worker before his or her H-1B status expires. However, if the worker quits the job before his or her status ends, the employer is not responsible for the costs of the worker’s return trip home.