Understanding Labor Law Protections For H-1B Visa Holders

The H-1B visa program allows US employers to hire non-immigrant foreign workers in specialty occupations or as fashion models. The H-1B visa is subject to a number of labor laws, which apply to both the employer and the employee. These laws cover wages, benefits, working conditions, discrimination, and record-keeping.

Wages and benefits

H-1B workers are entitled to certain rights and benefits under the H-1B program.

Wages

H-1B workers must be paid a wage that is at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the specific job in question, or the prevailing wage for the occupation in the area of intended employment, whichever is greater. This is known as the "required" wage. The prevailing wage is typically set by a union contract or, if there is no union contract, it is determined by the weighted average of wages paid to similarly employed workers in the same geographical area. The actual wage, on the other hand, is the wage rate paid by the employer to all individuals with similar experience and qualifications for the specific job.

The H-1B worker's wage can be either hourly or salaried, but there is a guaranteed minimum number of hours that must be paid. The employer must pay the guaranteed minimum number of hours unless the worker is unavailable due to non-work-related factors, such as the worker's own request for time off.

H-1B workers must also be paid for non-productive time caused by the employer or by the worker's lack of a required license or permit. Additionally, employers may not require H-1B workers to pay any part of the petition filing fee, financial penalties for leaving employment before the agreed-upon date, or employer business expenses such as attorney fees related to the H-1B Labor Condition Application.

Benefits

H-1B workers must be offered fringe benefits, such as health insurance, life insurance, disability insurance, and other benefits, on the same basis as they are offered to U.S. employees. This means that H-1B workers must be given the same opportunity to participate in benefit programs and must be subject to the same eligibility criteria as their U.S. counterparts.

Compliance and Enforcement

The U.S. Department of Labor's Wage and Hour Division is responsible for enforcing the H-1B program. Employers who violate the H-1B wage and benefit requirements may be subject to civil money penalties ranging from $1,000 to $35,000 per violation, depending on the severity of the violation. The Department of Labor also has the authority to order the employer to pay the required wage rate and any back wages owed to the H-1B worker.

H-1B workers who believe their rights have been violated can file a complaint with the Wage and Hour Division, and aggrieved parties may also file complaints with the Administrator of the Wage and Hour Division.

Working conditions

The working conditions for H-1B visa holders are outlined by the U.S. Department of Labor, which stipulates that employers must provide working conditions on the same basis and criteria as provided to similarly employed U.S. workers. This includes hours, shifts, vacations, and seniority-based benefits.

The Department of Labor also states that employers must not provide working conditions that will adversely affect the working conditions of similarly employed workers. This includes displacement of U.S. workers, which is defined as laying off a U.S. worker from a job that is essentially equivalent to the job an H-1B worker is sought for. Essentially equivalent jobs involve the same responsibilities, are held by workers with substantially equivalent qualifications and experience, and are located in the same area of employment.

Additionally, employers must not employ H-1B workers at locations where a strike or lockout in the occupational classification is occurring. They must also notify the Department of Labor of any future strike or lockout.

H-1B workers are also granted a number of rights, including the right to be paid for non-productive time caused by the employer or by the lack of a license or permit. They must also be offered fringe benefits on the same basis as offered to U.S. employees.

H-1B workers are also protected from intimidation, threats, blacklisting, discharge, or any other form of discrimination by their employer for disclosing information that is reasonably believed to be violations of H-1B requirements or for cooperating in an investigation or other proceeding concerning the employer's compliance.

Records

The H-1B employer must keep records of the hours worked and the wages paid to the employee. The employee should also keep a record of the hours they have worked, as well as their employer's name, address, and telephone number.

The employer must provide the employee with a copy of the Labor Condition Application (LCA). The employer must also make a copy of the LCA and its supporting documentation available for public inspection at the principal place of business or the place of employment of the H-1B employee within one working day after the date of submission of the LCA.

The public inspection file must contain the following:

• A copy of the certified LCA, including cover pages
• Documents providing the wage rate paid to the H-1B employee
• Method used to establish the "actual wage," including any periodic increases which the system may provide
• Prevailing wage rate and a general description of the methodology of the source
• Documents showing satisfaction of the union/employee notification requirements
• Summary of benefits offered to U.S. workers and H-1B workers
• Where the employer utilises the definition of "single employer" in the Internal Revenue Code (IRC), a list of any entities included as part of the single employer in making the determination as to its H-1B-dependency status

In the event of a corporate change, the public inspection file must also contain:

• A sworn statement by a successor entity accepting all liabilities of the predecessor entity
• Affected LCA number(s) and effective date(s)
• Description of the successor entity's actual wage system
• Successor entity's employer identification number

Additional documentation is required for employers who are H-1B-dependent, willful violators, or TARP/Federal Reserve Chapter 13 recipients:

• List of "exempt" H-1B nonimmigrant workers with respect to LCAs that indicate only such exempt workers will be employed
• Summary of recruitment methods

In addition to the records listed above, every H-1B-dependent, willful violator employer, and TARP/Federal Reserve Chapter 13 recipient must keep the required documentation concerning compliance with the non-displacement obligation.

Additionally, H-1B employers must maintain complete payroll records and make them available to the Wage and Hour Division upon request. The records must include the following information:

• Name, address, and occupation, for all H-1B employees and any other worker employed by the employer in the same occupation at the place of employment
• Rate of pay, total wages paid each pay period, date of pay and pay period covered by the payment, and total additions to or deductions from pay each pay period for each H-1B employee and any other worker employed by the employer in the same occupation at the place of employment
• Hours worked each day and each week by the employee if the employee is either paid on other than a salary basis (with respect to H-1B employees and any other worker employed by the employer in the same occupation at the place of employment), or with respect to only H-1B employees, if the worker is part-time
• Documentation of the offer of benefits and eligibility for benefits provided as compensation for services

Payroll records for the nonimmigrant workers and other employees in the occupational classification must be maintained for a period of three years from the date of the creation of the records (or longer if an enforcement proceeding is in effect) and be kept at the employer's principal place of business in the U.S. or at the place of employment of workers in the H-1B program.

The other records listed above must be kept for one year beyond the end of the employment period specified on the LCA, and be available at the employer's principal place of business in the U.S. or at the place of employment.

Discrimination

The H-1B program applies to employers seeking to hire non-immigrant workers in specialty occupations or as fashion models. The law establishes certain standards to protect both US workers and H-1B non-immigrant workers from adverse effects.

H-1B employers are prohibited from engaging in any discriminatory practices against their employees, former employees, or job applicants. This includes intimidation, threats, blacklisting, discharge, or any other form of discrimination as a result of the employee disclosing information that is reasonably believed to be a violation of H-1B requirements, or for cooperating in an investigation or proceeding concerning the employer's compliance.

The Department of Labor's Wage and Hour Division enforces the H-1B provisions and has the authority to order the employer to correct any violations and take appropriate remedial action. The Department of Justice also has the authority to investigate complaints of failure to hire qualified US workers.

US workers and job applicants have certain rights under the H-1B program. For example, 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 petition to employ a non-exempt H-1B worker in an essentially equivalent job. Additionally, H-1B-dependent employers or willful violators must offer the job to any US worker who applies and is equally or better qualified than the non-exempt H-1B worker.

H-1B workers are also granted a number of rights, including the right to receive a copy of the Labor Condition Application, to be paid at least the prevailing wage or the employer's actual wage (whichever is higher), and to be offered fringe benefits on the same basis as US workers.

Compliance assistance

The Immigration and Nationality Act (INA) sets forth certain prerequisites for employers wishing to employ H-1B, H-1B1, and E-3 nonimmigrant workers. To obtain H-1B or H-1B1 status approval, the employer must first file a Labor Condition Application (LCA) with the Department of Labor. The employer must state that they will:

• 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.
• Offer benefits on the same basis as for U.S. workers.
• Provide working conditions for H-1B, H-1B1, or E-3 workers that will not adversely affect the working conditions of similarly employed workers.
• Not employ an H-1B, H-1B1, or E-3 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.
• 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, H-1B1, or E-3 workers to the bargaining representative of workers in the relevant occupation. 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.

The INA also specifies that the number of new visas that can be issued each year is subject to a cap. H-1B visas are capped at 65,000 during a fiscal year, with an additional 20,000 available to those with a master's degree or higher from a U.S. institution. H-1B1 visas are limited to 1,400 nationals of Chile and 5,400 nationals of Singapore, while E-3 visas are limited to 10,500 nationals of Australia.

Additional rules apply to employers who are dependent on H-1B workers or are willful violators of the H-1B rules. An H-1B-dependent employer is generally one whose H-1B workers comprise at least 15% of the employer's full-time equivalent employees. Different thresholds apply to smaller employers. H-1B-dependent employers that hire 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.

The Department of Labor's Wage and Hour Division is responsible for enforcing this program and provides compliance assistance to employers, workers, and others. They offer clear and easy-to-access information and assistance on how to comply with the INA. Resources include:

• The H-1B, H-1B1, and E-3 Specialty (Professional) Workers webpage: Describes the qualifying criteria and the filing process, as well as program news and updates.
• Employment and Training Administration, Office of Foreign Labor Certification: Contact information and website provided.
• Wage and Hour Division: Contact information and website provided.

Frequently asked questions