Employer Obligations

Several obligations are placed on an H-1B employer by the Department of Labor throughout the H-1B application processs and on an on-going basis. OIA will adhere to and advice campus constituents of these obligations but must rely heavily on the sponsoring campus unit to inform OIA if they believe any of thes responsibilities are not being met.

Most of the obligations can be divided into the following five categories: obligations during the application process, obligations which go into effect upon filing of the H-1B Petition, ongoing obligations during the period of H-1B employment, ongoing record-keeping obligations, and obligations upon termination. Each are discussed in the table below.

I. During the Application Process

Many of the employer's obligations stem from the requirement of the Labor Condition Application ("LCA"), an application which must be filed with and approved by the Department of Labor prior to the H-1B petition filing with U.S. Citizenship and Immigration Services. Signing and submitting the LCA involves the employer taking on certain obligations. Those obligations state that the employer must:

  • Pay the required wage (the higher of either the actual wage you are paying to other employees doing similar jobs with similar credentials or the prevailing wage rate determined by commercial or government survey);
  • Must offer the prospective H-1B employee the same benefits package you offer to US employees upon the same terms (foreign national workers may not be denied benefits as temporary employees);
  • Attest that the employment of H-1B employees will not adversely affect the working conditions of US workers similarly employed in the area of intended employment;
  • Confirm that there is no strike, lockout, or work stoppage in effect at the place of employment effecting this job classification, and if one occurs during the course of H-1B employment that the employer will notify the Department of Labor within three days and will not use this LCA in support of another H-1B petition;
  • Attest that a copy of the approved Labor Condition Application will be provided to the prospective employee on the first day of employment.

II. Obligations upon approval of the H-1B

Upon approval of the H-1B visa, the employer is obligated to bring the foreign national employee on board (i.e.: put the employee on payroll and have them begin productive employment with the company) within a very specific period of time.

 

If the employee is entering the U.S. from overseas to begin employment with the U.S. company, employment must begin within 30 days of entry into the U.S. If the employee is simply changing from some other status to H-1B employment with the company while already present in the U.S., employment must begin within 60 days of approval of the H-1B.

Further, the employer must provide the H-B employee with a copy of the Approved Labor Condition Application (which provides information on the promised wage rate) on the first day of the H-1B foreign national's employment with the company.

III. Ongoing Obligations During the Period of Employment

During the time that the company employs a foreign national on an H-1B visa, the employer may not "bench" that employee (to place that H-1B employee in a non-productive state- in other words, a "non-working" - status and fail to pay that employer after that employee has started full-time employment with the company).

It should be noted, however, that the anti-benching provision does not prohibit the employee from asking for a leave from the position, nor does it conflict with or prohibit application of the Family and Medical Leave Act.

IV. Ongoing Record-keeping Obligations

The employer must maintain a public inspection file at either its primary place of business in the U.S. or the place where the H-1B employee will work. This file must be in place from the day after the Labor Condition Application is filed and remain on file for one year after the Labor Condition Application expires (longer in some rare cases).

This obligation is in addition to normal I-9 requirements applicable to all U.S. employers for workers.

V. Obligations Upon Termination

There are no unusual restrictions upon termination of an H-1B employee. Generally, the employer has the same obligations (and potential liabilities) here as with any other employee - with a few exceptions.

The employer is obligated to offer the terminated H-1B employee a one-way plane ticket back to his or her home country.

The employer should inform U.S. Citizenship and Immigration Services of the termination of the H-1B visa; failure to do so risks a finding that the employer was continuing to employ the H-1B employee and so was liable for back wages from the point of termination to formal notification or expiration of the visa.