Complying with H-1B Requirements: Prevailing Wages, LCA Posting, Paid and Unpaid Leave

By Brittany Simmons

WHAT are an employer's obligations when sponsoring an h-1b visa?

Employers who petition for H-1B visas must file Form I-129, Petition for a Nonimmigrant Worker and follow all associated requirements, including providing wage and worksite information. The employer will be connected to the employee for the length of the H-1B visa.

When an employer files the Form I-129 petition, they must establish that they have a valid employer-employee relationship with the prospective H-1B beneficiary. The job opportunity must be real and defined with a set number of working hours and a set wage.

The employer must also obtain a certified labor condition application (LCA) from the US Department of Labor (DOL). The purpose of an LCA is to ensure that hiring a foreign worker does not negatively impact the wages and working conditions of local US workers. The LCA outlines an employer’s obligations to the prospective H-1B employee, including paying the employee a minimum of the prevailing wage or the actual wage, whichever is higher:

• The prevailing wage is the average wage paid to similarly employed workers in the same occupation and geographic area.
• Actual wages are the average wages that the company pays to workers in similar positions.

Employers must post the LCA at the worksite(s) where the prospective employee will work.

Employers are required to maintain the relationship described in the initial contract or file the appropriate amendment for significant changes.  

how does an employer comply with lca posting requirements during covid-19?

Employers submit a Labor Condition Application (LCA)[1] for every prospective H-1B employee to the Department of Labor (DOL). LCAs should be submitted less than six months before the start of the employment period unless the employee meets specific disability or electronic access exceptions. Employers must include an LCA certified by the Department of Labor with each H-1B petition.

Employers must post LCA Notices of Filing (NOF) in two locations at each of the H-1B employee’s worksites for ten consecutive days. The NOF informs US workers that an H-1B worker is being sought in their occupational classification.

Any material changes to employment require a new LCA and potentially a new H-1B application. Most LCAs must include:

• Job title/position offered.
• Standard Occupation Classification (SOC) Code.
• Duration of position.
• Whether the position is full- or part-time.
• Total number of positions to which the LCA applies.
• Salary/pay rate.
• Location of worksite.
• Whether the position is new or continuing employment.
• Prevailing wage.
• Employer’s contact information.
• Attorney’s contact information.
• Public disclosure.

It is important to post the LCA NOF at the employee’s place of work for ten business days. If a business does not have an NOF correctly posted or stored in a Public Access File (PAF) during a United States Citizenship and Immigration Services (USCIS) site visit, it may be accused of immigration fraud. The PAF should be in an easily accessible location, such as the reception area, so that anyone may request to view the files if desired.

As employees work from home due to the COVID-19 pandemic, employers may provide electronic notice of LCA filing via direct email, their intranet system, or hard copy mailings.  

[1] Form ETA-9035/9035E.

do i have to post the notice of filing of the lca at my end client's facility? 

For third party worksites, the DOL regulations states an employer should post the NOF on or within 30 days before the date the LCA is filed with the DOL. The employer can post the notice in a few different ways:

1. At the place of employment: Any place where the H-1B nonimmigrant employee will be working is considered a place of employment. Even if the worksite is operated by an entity other than the employer, an LCA should be posted there for at least 10 calendar days in at least two conspicuous places.
2. As an electronic notice: An LCA can be filed electronically by publishing or posting a copy of the LCA, or equivalent documentation, on the employer’s intranet, website, electronic bulletin board, or similar location. An electronic notice can be posted on any online forum all employees have access to and must be posted for at least a period of 10 days.
3. An emailed notice: Employers can email a copy of the LCA or equivalent document to all employees and contractors in similar positions at the site listed on the LCA. The notice only needs to be sent once to qualify.

Posting requirements are dependent on individual case details, and some requirements have changed due to the COVID-19 pandemic. For more information regarding specific posting requirements, please contact your Chugh LLP, attorney.

can my h-1b employee take extended time off for maternity leave? do i have to pay the employee during this time?

H-1B employees are entitled to the same protections as US employees. All employers must remain compliant with the Family Medical Leave Act, as well as any individual state regulations. Employers should make sure they are compliant with all local laws, and that they maintain the employer-employee relationship during maternity leave.

Usually the employer-employee relationship is documented using pay statements. However, this may not be possible during long-term employee leave. For any unpaid absences, both the employer and the employee should prepare their explanation and provide all documentation pertaining to the leave. To maintain the employer-employee relationship, an employer may provide a letter confirming that the time off was approved and that the employee is still employed with the company. The letter should explain why the total yearly salary is reduced due to the unpaid leave. Also, the employee should continue to use the employer’s insurance plan. Any documentation proving the employer is still on the plan should be included with the rest of the H-1B documentation. Other records may be necessary depending on the type of leave. For maternity leave, the employee should provide a birth certificate. If leave is related to a medical emergency, the employer should provide medical records.

These rules are for long-term unpaid leave and do not apply to work sabbaticals, paid leave, or short-term vacation.

can my h-1b employee take extended time off to take care of a sick relative? do i have to pay the employee during this time?

To grant an employee unpaid time off, it is essential that the employer issues a letter of intent stating the unpaid time is vacation or leave and the employee will be returning to work as per the original work agreement. The letter should demonstrate that the employee requested unpaid leave, because employers cannot temporarily lay off, bench, or furlough H-1B employees.

The employer-employee relationship must remain intact for the employee to maintain their H-1B status. Employees on approved leave may maintain H-1B status. The rules are different if the employee will not be staying in the United States during their time off. Time spent outside the country can usually be recouped in subsequent H-1B extension filings.

If an employee is being paid during their time off, they are maintaining the employer-employee relationship and visa status is usually unaffected. However, USCIS makes decisions on a case-by-case basis and can deny or revoke H-1B status if the employee takes an extended break.

conclusion

For help filing an H-1B visa or remaining compliant with H-1B regulations, contact your trusted Chugh LLP, attorneys.