H-1B Visa Violations: Employee's Rights, Employer's Responsibilities
December 1, 2011
The H-1B Visa category for specialty occupation workers offers many foreign nationals and American companies a great opportunity to engage in a mutually beneficial working relationship on a temporary basis. Thousands of highly skilled professionals and specialists from around the world have utilized the H-1B visa for their personal benefit, for the benefit US employers and to the benefit of the US economy in general. However, in recognition that unscrupulous US employers could potentially take advantage of an immigrant’s desire to work in the United States, Congress placed various safeguards and mandated certain duties that H-1B employers must adhere to, or risk liability for back wages and penalties. Below, I will discuss the employer’s responsibility to pay the higher of the prevailing wage or the actual wage to H-1B workers under Federal Law.The Higher of the Prevailing Wage or the Actual Wage
Every H-1B visa petition must be accompanied by a Labor Condition Application (“LCA”) , certified by the US Department of Labor and stating that the H-1B non-immigrant worker will be paid at least the prevailing wage during his or her employment with the US employer company. This LCA document is filed through the US Department of Labor’s iCERT system and is reviewed and approved by employees at the DOL on an individual basis. In all instances, this LCA document, once certified by the Department of Labor, will be printed out and signed by the US employer in order to file an approvable H-1B visa petition. Under the Code of Federal Regulations at 20 C.F.R. 655.731 (a), once an employer signs this document, the employer must pay the higher of the prevailing wage or the actual wage to the foreign national worker for the entire period of authorized employment requested in the H-1B petition.What is the Prevailing Wage for my job and at my Location?
The prevailing wage is loosely defined under the federal regulations that pertain to the H-1B LCA requirements a figure that the employer names, based on the best information available to it at the time of filing the application. See 20 C.F.R. 655.731(a)(1)While the employer is not required to use any specific methodology to determine the prevailing wage, the two major methods to showing the prevailing wage on the H-1B petition are 1) utilizing the wage rate levels provided by the Foreign Labor Certification Data Center ( a DOL database of all job categories) or 2) requesting a prevailing wage determination from the Department of Labor through the iCERT system.
Once the employer has determined a number that it attests is the prevailing wage for the particular occupation and for that particular time and location, this amount must be listed on the LCA document. The employer will then attest on the same LCA document that the foreign national will be paid an amount that meets or exceeds the prevailing wage during the entirety of the requested period of employment authorization listed on the H-1B visa petition.çhat is the Actual Wage for my Job and at my Location?
The actual wage rate is the wage rate that s paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question. This requirement is included to ensure that even if the US employer pays the prevailing wage to the foreign national employee, the US employer is not permitted to pay US workers of the same level of qualifications a greater rate than the foreign national in question. The H-1B visa category was never intended as a tool for US employers to import foreign laborers to the United States in order to be able to pay them less than American workers. Rather, the H-1B visa category is designed to allow US employers to supplement their labor force with foreign nationals in occupations where a plethora of talented and available US workers are not currently available.Methods of Payment of the Required Wage
The wages to be paid to the foreign national must be paid cash in hand, free and clear, when due with only a few situations where substitutes for cash may be accepted as wages paid. Wages that qualify must be shown by the employer’s payroll records, reported to the IRS and reported to state and local governments as well. Bonuses may not be used to calculate the wage paid if the bonus is contingent upon or a condition relative to the employer’s annual profits reaching some certain level.
Benefits provided as compensation for services may be credited as compensation for satisfaction of the required wage, but only if the benefits are recorded and reported as “earning” with appropriate taxes and FICA contributions withheld and paid for.
When does the obligation to Pay Start?
The obligation to pay the required wage to an H-1B employee begins when the foreign national first makes himself or herself available for work, reports for orientation and training, goes to an interview or meets with a customer or studies for a licensing exam for the benefit of the employer.
Even if the employee has not made himself or herself available to the US employer to begin work, so long as the employee enters the United States on the H-1B visa submitted by the employer, the US employer must pay the required wage beginning 30 days after the date that the foreign national was first admitted to the United States on the H-1B visa obtained by the employer. This means that even if the foreign national comes to the United States using the visa obtained by the H-1B petitioner and does not even show up to work, the employer could still face liability for wages owed to the H-1B visa employee. An employer faced with this situation would be advised to monitor their employee’s entry to the US employer but does not report for work.
Additionally, many H-1B employees will already be present in the United States on another visa type or on an H-1B visa that was obtained from a different company. In this situation, the H-1B employer will need to pay the H-1B employee the required wage beginning 60 days after the date that the foreign national become eligible to work for the employer.What if I have not been Paid the Prevailing or Actual Wage by my Employer?
Our firm assists H-1B employees who have not been paid the prevailing or actual wage by their H-1B employer. We have successfully collected hundreds of thousands of dollars from employers who did not follow the federal law in regard to the payment of wages to H-1B employees. There are time limits as to how long after a violation occurred that the employee can claim his or her back wages. Therefore, it is imperative for aggrieved employees to act as soon as possible and begin the process of claiming the wages that they are owed under federal law. Collect all documents that pertain to your case including LCA, H-1B petitions paystubs and W-2 forms.How to Contact Us
If you have questions about an H-1B violation, and/or you need help in an immigration process, please contact our immigration attorneys or call the law firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, the law firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.