H-1B Compliance Counts – Be Informed!
With the federal government’s fiscal year starting October 1, many employers have now brought their new H-1B workers into the corporate fold. However, are you as informed as you should be regarding H-1B compliance issues? Here are some common “Facts and Fictions” that you should be aware of:
Once I hire my foreign national employee, they can work anywhere in my company.
FICTION: While employing an H-1B worker at a location other than the one you indicated on your petition doesn’t seem like a big deal – it could be. Prior to an H-1B petition being submitted, the employer signs a Labor Certification Application (“LCA”) which lays out the location and rate of pay for the prospective foreign worker. That minimum salary (“Prevailing Wage”) ties back to the geographic area of employment. This means that the Prevailing Wage for an employee in Buffalo, NY could be significantly different than in Phoenix, AZ – even for the same job. If you have to transfer a foreign worker to another branch, office or work site, make sure you speak with your Immigration Attorney first to see whether or not the transfer impacts the terms of the LCA. Once the Attorney has completed their analysis, they can tell you what steps need to be taken, if any, before you transfer your employee.
My foreign national employee can work at my clients’ offices.
DEPENDS: There are circumstances under which you can place your employees at your clients’ offices. However, this must be determined beforehand and a petition crafted in such a way that fully complies with both Department of Homeland Security and Department of Labor regulations for placement of your employee at an off-site location.
Unfortunately, I had to let one of my H-1B workers go before the expiration date of their approval. All I have to do is notify HR so they can update their records.
FICTION: As an H-1B employer you are required to provide your terminated worker with the reasonable costs of return to their country of last residence. In addition, you should notify USCIS in writing of the termination and withdraw the LCA. Failure to do so can result in the employer having to pay the employee for the full term of the approval.
If I don’t comply with the laws and regulations of the H-1B program, I can be subject to stiff penalties.
FACT: The H-1B is a great category under which to bring foreign workers to the U.S. to fill specialty occupations you may not be able to otherwise fill, but the government is serious about protecting both the foreign worker and American workers. Failure to comply with regulations can result in significant penalties and fines. For certain violations, the Department of Labor can actually debar you from participating in the program.
If you have questions about whether or not you are in compliance with your H-1B program, or wish to speak to an immigration lawyer regarding an H-1B petition, contact us to schedule a consultation.
We also invite you to read more about the H-1B program here:
- The H-1B Category: Timing, Fees and Other Issues
- H-1B Visa: Creation and Maintenance of the Public Access File
- Labor Condition Application is first step in H-1B Process
- Not All H-1B Petitions Are Subject to the Annual Numeric Cap
- KCC Set to Conduct Unannounced Audit of NIV Petitions
- Tips for KCC Telephonic Reviews of Nonimmigrant Visa Petitions
- H-1B Visa: Termination of H-1B Employment