H-1B Employee

What are the basic provisions and requirements of the H-1B program?

The Immigration and Nationality Act (INA) allows employment of alien workers in certain specialty occupations, generally those requiring a bachelor's degree or its equivalent. Alien workers such as engineers, teachers, computer programmers, medical doctors, and physical therapists may be employed under the H-1B visa classification, as may fashion models of distinguished merit and ability. H-1B visas are capped at 65,000 during a fiscal year, subject to certain exceptions.

The INA sets forth certain prerequisites for employers wishing to employ H-1B nonimmigrant workers. To obtain H-1B status approval, the employer must first file a Labor Condition Application (LCA) with the Department of Labor. The employer must attest that it will:

1. Pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; and offer benefits on the same basis as for US workers;
2. Provide working conditions for H-1B workers that will not adversely affect the working conditions of workers similarly employed;
3. Not employ an H-1B worker at a location where a strike or lockout in the occupational classification is occurring, and notify the Employment and Training Administration (ETA) of any future strike or lockout; and
4. On or within 30 days before the date the LCA is filed with ETA, provide notice of the employer's intent to hire H-1B worker(s). The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B worker will be employed.  If there is no bargaining representative, the employer must post such notices in conspicuous locations at the intended place(s) of employment, or provide them electronically.

Additional rules apply to H-1B-dependent employers and willful violators of the H-1B rules. These rules sunset for H-1B employment under LCAs filed after September 30, 2003 but were restored effective March 8, 2005 by the H-1B Visa Reform Act of 2004.

An H-1B-dependent employer is, roughly, one whose H-1B workers comprise 15% or more of the employer's total workforce; different thresholds apply to smaller employers. H-1B-dependent employers who wish to hire only H-1B workers who are paid at least $60,000 per year or have a master's degree or higher in a specialty related to the employment can be exempted from these additional rules.

H-1B-dependent employers and “willful violator” employers must attest to the following three elements addressing non-displacement and recruitment of US workers:

1. The employer will not displace any similarly employed US worker within 90 days before or after applying for H-1B status, or an extension of status for any H-1B worker;
2. The employer will not place any H-1B worker employed pursuant to the LCA at the worksite of another employer unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed US worker within 90 days before or after the placement of the H-1B worker; and
3. The employer, before applying for H-1B status for any alien worker pursuant to an H-1B LCA, took good faith steps to recruit US workers for the job for which the alien worker is sought, at wages at least equal to those offered to the H-1B worker. Also, the employer will offer the job to any US worker who applies and is equally or better qualified than the H-1B worker. This attestation does not apply if the H-1B worker is a "priority worker" (defined as a person with extraordinary ability, or outstanding professors or researchers, or certain multi-national executives or managers) within the meaning of Section 203(b)(1)(A), (B), or (C) of the INA.

After the Department of Labor certifies the LCA, the employer will apply to the US Citizenship and Immigration Services (USCIS) for approval to employ an alien worker under H-1B status so that alien workers may be hired. 

Must an H-1B worker be paid a guaranteed wage?

The employer must pay H-1B worker(s) at minimum the “required” wage which is the higher of the prevailing wage or the employer’s actual wage for similarly employed workers.

The prevailing wage rate is set for the occupational classification in the geographical area of employment by a union contract, if applicable, or according to the weighted average of wages paid to similarly employed workers in the geographic area of employment. A common prevailing wage source is the State Workforce Agency operating in each US state.

An H-1B worker’s wage can be hourly or salaried. The guaranteed minimum number of hours to be paid to the H-1B worker for all pay periods is the number of hours that the employer reports in Part 5 of the Petition for Nonimmigrant Worker.

The employer must pay the guaranteed minimum hours unless the H-1B worker is unavailable for work due to non-work related factors. The Department of Labor’s Wage and Hour Division enforces the H-1B wage provisions and has the authority to order an employer to pay the required wage.

Must an H-1B employer pay for nonproductive time?

Employers are required to pay workers for all nonproductive time resulting from conditions related to employment including lack of assigned work, lack of a permit, or time incurred studying for a licensing exam. Payment is not required for nonproductive time due to reasons not related to employment such as a worker’s voluntary absence or hospitalization, etc.

Please note that employers are obligated to comply with the Immigration and Nationality Act and other statutes relating to employment such as the Family and Medical Leave Act.

Nonproductive pay requirements begin at the earliest of the following applicable events: (a) the H-1B worker first makes them self available for work or comes under control of the employer including reporting for orientation or studying for licensing exam, (b) no later than 30 days after H-1B worker is admitted into US pursuant to H-1B petition, (c) no later than 60 days after the H-1B worker becomes eligible to work for the employer based on the approval date on Form I-797 Notice of Action, or (d) for an H-1B worker already in the US, on the date of filing the Petition for Nonimmigrant Worker by sponsoring employer under portability provisions.

What are the rules concerning deductions from an H-1B worker’s pay?

Under no circumstances can an H-1B worker be required to pay the following:

1. Any penalty as defined by state law for worker’s failure to complete the full employment period;
2. Any part or portion of the statutory Department of Homeland Security’s US Citizenship and Immigration Services petition filing or fraud prevention fees; and/or
3. Any deduction for the employer’s business expenses that would reduce an H-1B worker’s pay below the required wage rate, including: expenses or attorneys’ fees related to the filing of the Labor Condition Application and/or H-1B petition; tools and equipment; and travel expenses while on employer’s business.

Deductions, other than those excluded above, may be made, even if they reduce the H-1B worker’s pay below the required wage rate, only when the deductions satisfy one of these three categories:

1. Required by law, such as the withholding of income taxes; or
2. Reasonable and customary such as union dues or insurance premiums; or
3. Voluntarily authorized by the H-1B worker, under the following standards:

• There is a voluntary, written authorization by the employee;

• For a matter principally for the benefit of the employee, such as reimbursement for travel to the United  States or payment for food and lodging not incurred while traveling on the employer’s business;

• For an amount that does not exceed the fair market value or the actual cost of the matter covered; and

• The amount does not exceed the limits for garnishments set by the Consumer Credit Protection Act.

What benefits must be offered to H-1B workers?

An employer must offer H-1B workers benefits on the same basis, and according to the same criteria, as the employer provides to similarly employed US workers.

No benefits need be offered to an H-1B worker placed in the US for 90 or fewer continuous days if the worker remains on the home country payroll and continues to receive home country benefits without interruption.

How long is an H-1B visa valid?

The H-1B certification is valid for the period of employment indicated on the Labor Condition Application (LCA), for up to three years.

A foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B expires, the foreign worker must remain outside the US for one year before another H-1B petition can be approved. Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation.

What is “Portability” and to whom does it apply?

The portability provision is intended to preserve the legal status of an H-1B nonimmigrant who is already in the US. Portability allows the H-1B worker to enter into employment with a new employer when the new employer has (a) filed a Petition for Nonimmigrant Worker for the employment of the H-1B worker before the expiration of worker’s authorized period of stay and (b) the new employer has submitted an unexpired, approved Labor Certification covering the work the individual is being hired to perform.

An H-1B nonimmigrant who is employed under a valid LCA with one employer can accept new employment upon the filing by the prospective employer of a new petition on the H-1B worker’s behalf. The H-1B worker does not need to wait for the petition to be adjudicated before beginning work for the new employer; employment may commence upon the filing’s receipt by USCIS.

What rights does the Employee have under the H-1B program?

H-1B workers are granted a number of important rights. The employer must give the worker a copy of the LCA. The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment, whichever is higher. The employer must pay for non-productive time caused by the employer or by the worker's lack of a license or permit. The employer must offer the worker fringe benefits on the same basis as its other employees.

Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking "liquidated damages" pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker's breach of contract.

US workers and job applicants may also have certain rights under the H-1B program. US workers employed by an H-1B-dependent or willful violator employer may not be laid off within 90 days before or after the employer files a US Citizenship and Immigration Services (USCIS) petition to employ an H-1B worker in an essentially equivalent job.

In addition, an H-1B-dependent employer or willful violator must offer the job to any worker who applies and is equally or better qualified for the job than the H-1B alien worker. The US Department of Justice has the authority to investigate complaints of failure to hire qualified workers.

No employer of H-1B workers may intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing violations of H-1B provisions or for cooperating in an official investigation of the employer's compliance. U.S. workers and H-1B workers may also examine the public disclosure documents that the employer is required to maintain that provide information about the employer's compliance with the attestation elements. Complaints about non-compliance with H-1B labor standards may be filed with Department of Labor Local Wage and Hour Division offices

What actions are available to an H-1B worker whose rights have been violated?

If an H-1B worker feels that his or her rights have been infringed upon, they should immediately file a complaint with the US Department of Labor, Employment Standards Administration, Wage and Hour Division. The complaint should be filed with the Wage and Hour Division District Office with purview over the area where the worksite is located.

It is in the best interest of the H-1B worker to keep an accurate record of all abuses and infringements that include dates, names of parties involved and details of violations. Copies of any physical evidence such as written or e-mailed notices, pay stubs, etc, should be submitted in support of their claim.

For a complete listing of Wage and Hour Division District Offices please visit US Department of Labor.

What protections are there for “whistleblowers”?

The H-1B employer is prohibited from retaliating against any US or H-1B worker – current or former employee, or job applicant – because the employee has disclosed any information to the employer or any other person or entity about an employer’s alleged failure to comply with any of the H-1B provisions, or because the employee has cooperated in an enforcement activity.

Employers are specifically prohibited from intimidating, threatening, restraining, coercing, blacklisting, discharging, or discriminating in any other manner against a worker who has exercised his/her rights under the H-1B program. Employers who violate these provisions are subject to penalties up to $5,000 per violation, and a two-year debarment.

The Administrator of the Wage and Hour Division may impose such other administrative remedies as the Administrator determines to be appropriate, including, but not limited to, reinstatement of workers who were discriminated against, reinstatement of displaced US workers, back wages to workers who have been displaced or whose employment has been terminated in violation of these provisions, or other appropriate legal or equitable remedies.