Ten Primary Employer Obligations Towards H-1B Employees
1. An employer must give an H-1B employee a copy of the certified and signed LCA (Form ETA 9035) no later than the date the H-1B nonimmigrant reports to work at the place of employment. Upon request, the employer must provide the H-1B employee with a copy of the cover pages (Form ETA 9035CP).
2. An employer must pay the H-1B employee the required wage, which is the greater of the prevailing wage or the actual wage. The prevailing wage refers to the average wage paid to similarly employed workers in a specific occupation in an area of intended employment. The actual wage refers to the wage rate paid by the employer to all other employees with similar experience and qualifications for the specific employment in question. For example, suppose an information technology company located in Chicago, IL has offered a foreign national a position as a Software Developer. Suppose further that this company has four other employees working as Software Developers and is paying each of them $25.00 per hour. The FLC Data Center, which reflects wage data collected by the U.S. Department of Labor, indicates that the level 1 prevailing wage in the Chicago area for a Software Developer is $29.55 per hour. Given that the prevailing wage is higher than the employer’s actual wage rate, to satisfy the LCA wage requirement, the employer must pay the foreign national a wage rate of $29.55 per hour for the entire period of authorized employment. Now suppose that the company is paying its four existing Software Developers $35.00 per hour. If these employees all have similar experience and qualifications as the foreign national, then to satisfy the LCA wage requirement, the employer must pay the foreign national a wage rate of $35.00 per hour for the entire period of authorized employment.
3. An employer is required to pay the ACWIA “training” fee for the H-1B petition. At the present time, the ACWIA fee is $750 for employers with less than 25 employees and $1,500 for employers with 25 employees or more. In addition, in situations where the H-1B employee has been offered the prevailing wage for the position, the employer must also cover the H-1B petition filing fee, the fraud fee and the attorney fees.
4. An employer must pay the required wage to the H-1B employee, cash in hand, free and clear, when due except that authorized deductions may reduce the cash wage below the required wage level. Authorized deductions include (1) a deduction that is required by law (e.g. income tax), (2) a deduction that authorized by a collective bargaining agreement or is reasonable and customary in the occupation and/or area of employment (e.g. contribution to premium for health insurance policy covering all employees), or (3) a deduction that is made in accordance with a voluntary, written authorization by the employee, is for a matter principally for the benefit of the employee, is not a recoupment of the employer’s business expense, is an amount that does not exceed the fair market value or actual cost of the matter covered, and is an amount that does not exceed the limits set for garnishment of wages.
5. An employer must pay a salaried employee in prorated installments (e.g. bi-weekly) paid no less often than monthly. In addition, an employer must pay an hourly-wage employee wages due for all hours worked at the end of the employee’s ordinary pay period (e.g. weekly) but in no event less frequently than monthly.
6. An employer must pay the H-1B employee for time in nonproductive status due to a decision by the employer. Nonproductive status refers to time spent by the H-1B employee not performing work due to a decision by the employer. It does not include time spent not performing work due to conditions unrelated to the employment. A full-time salaried H-1B employee in nonproductive status must be paid the full amount of his/her weekly salary, whereas a full-time hourly wage H-1B employee in nonproductive status must be paid for 40 hours work per week (or such other number of hours that the employer considers full-time). A part-time H-1B employee in nonproductive status must be paid for at least the number of hours indicated on the H-1B petition filed by the employer. Where the H-1B employee’s hours were listed as a range on the H-1B petition, the nonproductive H-1B employee must be paid for at least the average number of hours normally worked provided that this number is within the range indicated.
7. An employer must start paying an H-1B employee the required pay beginning on the date when he/she “enter into employment” with the employer. The H-1B employee “enters into employment” with the employer under the following circumstances: (1) when he/she makes him/herself available for work or otherwise comes under the control of the employer, (2) 30 days after the date the H-1B employee is first admitted into the U.S., or (3) 60 days after the date the H-1B employee becomes eligible to work for the employer if s/he is already in the U.S.
8. An employer must not make unauthorized deductions from an H-1B employee’s salary, such as a rebate of the ACWIA fee or a deduction or reduction to collect a penalty for ceasing employment with the employer prior to a date agreed to by the H-1B employee and the employer. However, the employer is permitted to receive bona fide liquidated damages from the H-1B employee who ceases employment prior to an agreed date. Bona fide liquidated damages are amounts which are fixed or stipulated by the parties at the inception of the contract and which are reasonable approximations or estimates of the anticipated or actual damage caused by the contract breach. Any unauthorized deduction taken from wages is considered to be non-payment of wages and may result in a back-wage assessment plus civil money penalties and/or disqualification from H-1B and other immigration programs, if willful.
9. An employer must offer benefits (e.g. paid vacations and holidays, health insurance plans) on the same basis and in accordance with the same criteria as the employer offers to U.S. workers. The benefits received by the H-1B employee need not be identical to the benefits received by similarly employed U.S. workers provided that the H-1B employee has been offered the same benefits package but voluntarily chose to receive different benefits. An employer also must afford working conditions (e.g. hours, shifts, vacation periods, and benefits) to its H-1B employees on the same basis and in accordance with the same criteria as it affords to its U.S. workers employees who are similarly employed.
10. An employer must pay for the reasonable cost of transportation of the H-1B employee abroad if the H-1B employee is dismissed prior to the end of authorized employment.