Hiring H-1B Workers? Avoid Fines and Penalties for These Violations

There are standards employers must meet in order to avoid stiff fines and penalties.

As an employer who hires non-U.S. workers on H-1B visas, you are basically agreeing to take on various legal obligations. Failure to meet these obligations can result in heavy fines and other penalties. It is therefore of great importance that you know what you're getting into before beginning the process of hiring an H-1B worker.

You Must Maintain a Public Access File for Each H-1B Worker

Employers must maintain a separate “public access file” for each H-1B worker. Create this file as soon as you submit the LCA to the Department of Labor (DOL). You must store the file at your place of business for the duration of the person's H-1B employment and one additional year after the employment ends. The file must include these documents:

  • hard copy of the signed certified LCA
  • a clear explanation of how you determined the prevailing wage
  • proof that you complied with the LCA attestation of informing the union/other workers of the H-1B worker’s hire, and
  • summary of benefits offered to U.S. workers in the H-1B worker’s position.

You Must Pay Each H-1B Worker the Prevailing Wage

An employer is also legally obligated to pay the H-1B worker the “prevailing wage” for the industry. That means the same amount that is, on average, 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 rural 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.

You Must Tell USCIS About Changes in Each H-1B Worker's Employment Status

Employers are under an ongoing obligation to inform USCIS of any “material changes” in an H-1B worker’s employment. Unfortunately, immigration law does not define “material change.”

Any number of changes could be seen as material, such as changes in a worker’s job duties, job location, or position in the company hierarchy. Use your best judgment and consider consulting an immigration attorney when deciding whether or not a change is “material.”

If a material change occurs, you must advise USCIS by filing an amended I-129 petition. The amended I-129 should contain all the documents that the original I-129 did, plus an explanation of the change and the reason for it.

You Must Treat Each 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. Also, you cannot legally pass over H-1B workers for promotions or other rewards on account of their H-1B status.

You Must Pay for Each 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.

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