H-1B employers have a range of obligations to their H-1B employees before, during, and after their employment. Employers that do not meet them risk back-wage liability, civil penalties, and debarment from the H-1B program. Shihab Burke LLC Immigration Lawyers works with human resources professionals to build compliance into every stage of H-1B employment.
Labor Condition Application Attestations
Before filing an H-1B petition, the employer must obtain a certified Labor Condition Application (LCA), Form ETA 9035, from the Department of Labor. By filing the LCA, the employer attests that:
- It will pay the H-1B worker the required wage, which is the greater of the actual wage paid to similarly situated workers or the prevailing wage for the occupation in the area of employment;
- It will offer the H-1B worker benefits on the same basis as U.S. workers;
- The employment of the H-1B worker will not adversely affect the working conditions of U.S. workers;
- There is no strike, lockout, or work stoppage in the occupational classification at the place of employment; and
- It has provided notice of the filing to the bargaining representative or, if there is none, by posting notice at the place of employment, and it will provide a copy of the certified LCA to the H-1B worker.
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H-1B Compliance Checklist
Step 1: Before and When the LCA Is Filed
- Provide notice of the LCA on or within 30 days before filing it: post it for 10 days at each place of employment, make it available electronically for 10 days, or send it once directly to affected workers electronically. If there is a bargaining representative, notify the representative instead.
- Create the public access file within one working day after filing the LCA, including documentation of how the prevailing wage was determined. (See our H-1B Audits page for what the public access file must contain.)
- Give the H-1B worker a copy of the certified LCA no later than the day the worker begins work.
Step 2: During H-1B Employment
- Pay the required wage, which is the greater of the actual wage paid to similarly situated workers or the prevailing wage.
- Offer benefits on the same basis as U.S. workers, and maintain working conditions that do not adversely affect U.S. workers.
- Keep payroll records for all employees in the H-1B worker’s occupational classification for three years.
- File an amended or new H-1B petition with USCIS before making any material change in the terms and conditions of the H-1B worker’s employment.
Step 3: When H-1B Employment Ends
- Promptly notify USCIS of the H-1B worker’s termination.
- Offer to pay the reasonable cost of the H-1B worker’s return transportation (not including dependents) to his or her last place of foreign residence if the employer dismisses the worker before the end of the authorized period of stay.
- Keep the public access file for one year after the last H-1B worker employed under the LCA stops working or, if no worker was employed under the LCA, for one year after the LCA expires or is withdrawn.
Step 4: Prohibited Practices
- Failing to pay the H-1B worker, or paying less than the wage stated on the LCA and the petition.
- Misrepresenting any information to USCIS on the H-1B petition or to the Department of Labor on the LCA.
- Requiring or accepting repayment from the H-1B employee for the ACWIA training fee, or for other H-1B filing fees or attorney fees where the repayment would reduce the worker’s pay below the required wage.
- Making any material changes to an H-1B employee’s job duties or work location without filing a new LCA and H-1B amendment.
- Charging an H-1B worker a penalty for leaving the H-1B sponsoring company before an agreed date. (Bona fide liquidated damages may be permitted under state law, but a penalty is not.)
- Placing any H-1B employee at a work location where there is a strike, lockout, or stoppage of work in the occupational classification.
- Benching an H-1B employee, that is, failing to pay the full required wage during nonproductive time caused by a decision of the employer or by the worker’s lack of a required permit or license.
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Prevailing Wages
To determine the required wage, an H-1B employer must know the prevailing wage for the position in the area of intended employment. Under Department of Labor regulations, an employer may (1) request a prevailing wage determination from the Department of Labor’s National Prevailing Wage Center; (2) use the Department of Labor’s Occupational Employment and Wage Statistics (OEWS) data for the occupation and area at the appropriate wage level; (3) use a wage set by an applicable collective bargaining agreement; or (4) use another legitimate source, such as an independent authoritative wage survey that meets Department of Labor criteria.
The employer must document the source it used in its public access file. An employer that obtains and relies on a prevailing wage determination issued by the National Prevailing Wage Center generally receives safe harbor protection for that wage in a later Department of Labor investigation. A pending proposal to raise prevailing wage levels is discussed on our H-1B and H-4 Updates page.
Benching and Termination
H-1B employers must pay H-1B workers the full required wage even during nonproductive time. Failing to do so is known as “benching” and is prohibited. An employer may not, because of its own decision or the worker’s lack of a permit or license, place an H-1B worker in nonproductive status without pay; for example, it may not furlough or temporarily lay off an H-1B worker without continuing to pay the required wage. The employer is not required to pay, however, for nonproductive time caused by conditions unrelated to employment that take the worker away from his or her duties at the worker’s voluntary request and convenience, or that render the worker unable to work, unless payment is required by the employer’s benefit plan or by other laws.
The obligation to pay the required wage generally ends only when the worker’s H-1B status expires or the worker is subject to a bona fide termination. If the employer terminates an H-1B worker before the end of the authorized period of stay, it must notify USCIS and offer to pay the reasonable cost of the worker’s return transportation to his or her last place of foreign residence. The employer may not accept reimbursement of the ACWIA training fee from the worker, and it may not accept reimbursement of other H-1B filing fees or attorney fees if doing so would reduce the worker’s pay below the required wage; a worker may pay an optional premium processing fee requested solely for the worker’s personal benefit, subject to the same limit. The employer also may not require the worker to pay a penalty for leaving before an agreed date. It may, however, recover bona fide liquidated damages, agreed to in advance, to compensate for its losses when a worker leaves before the agreed date, if applicable state law treats the amount as liquidated damages rather than a penalty and any deduction from wages meets Department of Labor requirements.
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H-1B Dependent Employers
An employer with more than 50 full-time equivalent employees is H-1B dependent if 15% or more of its workforce is in H-1B status. Smaller employers are measured by numbers instead: 8 or more H-1B workers for employers with 25 or fewer employees, and 13 or more for employers with 26 to 50. H-1B dependent employers, and employers found to have committed willful violations, must also attest that:
- They will not lay off a similarly employed U.S. worker within 90 days before or after filing an H-1B petition or extension for an H-1B worker;
- They will not place an H-1B worker at the worksite of another employer that has laid off a similarly employed U.S. worker within 90 days before or after the placement; and
- They have taken good faith steps to recruit U.S. workers for the position and will offer the job to any U.S. applicant who is equally or better qualified.
These additional attestations do not apply to LCAs used only for “exempt” H-1B workers, meaning workers who are paid at least $60,000 per year or who hold a master’s or higher degree (or its equivalent) in a specialty related to the position. The exemption affects only the additional attestations; it does not remove the employer’s ordinary H-1B obligations.
H-1B Amendments
An employer must file an amended or new H-1B petition before a material change in the terms and conditions of an H-1B worker’s employment takes effect. A change in work location that requires a new LCA is a material change. Other changes that may be material, depending on the facts, include changes in:
- Location of employment, including the addition of work locations, where a new LCA would be required;
- Job duties or position, including lateral moves or promotions;
- Wages;
- Hours (for example, from full-time to part-time); and
- Employer identity. A new employer must file its own petition. In a corporate merger or acquisition, a new petition may not be needed if the successor assumes the prior employer’s obligations and the terms of employment are otherwise unchanged.
An amended petition generally is not required when the worker moves to a new worksite within the same area of intended employment covered by the existing LCA, for a qualifying short-term placement, or for travel to a “non-worksite” location, described below. The employer must still post the required notice of the LCA at a new worksite within the same area.
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Client Sites, Consultants, and Remote Work
H-1B workers who work at client sites, such as IT consultants, present particular compliance questions. The employer must show that a bona fide specialty occupation position is available for the worker as of the requested start date; the employment cannot be speculative. When a worker will be staffed with a third party, meaning the worker will work within that organization rather than merely provide services to it, USCIS evaluates whether the position is a specialty occupation based on the requirements imposed by that third party. Contracts, statements of work, work orders, or letters from the end client are not automatically required in every case, but USCIS may request them to show that the work exists and to describe its requirements.
The employer must be a legitimate business present in the United States with a genuine job offer for the worker. At no time may an H-1B worker be benched for lack of work; the employer must pay the required wage stated in the LCA even if no work is available. A worker’s home may be a place of employment when the worker works remotely, and the LCA, notice, and amendment rules apply to that location as well.
When a New LCA Is Not Required
Non-Worksite Locations
A new LCA is not required for travel to a location that the Department of Labor treats as a “non-worksite,” including when:
- The occupation is “peripatetic,” meaning it requires frequent travel by its nature, and the worker spends no more than 5 consecutive workdays on any one trip;
- The worker occasionally travels to other locations but works substantially at the permanent work location in the LCA, and spends no more than 10 consecutive workdays on any one trip; or
- The travel is for employee development, such as conferences, training, seminars, or meetings. This does not include workers who regularly provide training or seminars at other locations.
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Short-Term Placements
An employer may place an H-1B worker at locations not listed in the LCA for short-term assignments totaling up to 30 workdays per worker in a one-year period (the calendar year or the employer’s fiscal year) within the same area of employment, if the employer does not already have a certified LCA for the occupation in that area; there is no strike, lockout, or labor dispute in the occupation at the location; the employer continues to pay the required wage for the permanent work location; and the employer pays the worker’s actual costs of travel, lodging, meals, and incidental expenses for both workdays and non-workdays.
Short-term placements may total up to 60 workdays in the one-year period if the worker maintains a permanent office or workstation at the LCA work location, spends a substantial amount of time there, and keeps his or her primary residence in that area (for example, mailing address, bank accounts, driver’s license, and dependents’ residence).
If a placement will exceed the 30- or 60-day limit, or does not fall within one of these exceptions, the employer must obtain a new LCA and file an amended petition before the limit is reached or the placement begins.
The short-term placement rules cannot be used for a worker’s initial placement after entering the United States, and repeated or continuous rotations may not be used to avoid filing an LCA.
These rules are highly fact-specific. Employers should review each placement with an immigration attorney, who can evaluate all of the facts before the worker travels.
H-1B Jobs Requiring a State License
Some H-1B positions, such as healthcare and teaching positions, require a state or local license. Because H-1B approval for these positions is conditioned on the worker holding the required license, while some states will not issue a license without proof of work authorization, a “catch-22” can arise.
USCIS may approve an H-1B petition for one year without the license only in limited circumstances. The worker must meet all substantive requirements for the license and have applied for it, and the license must be unavailable solely because of a technical requirement, such as a Social Security number or employment authorization, as shown by evidence from the licensing authority. Meeting the educational requirements and applying for the license are not enough on their own. Temporary approval does not authorize the worker to practice the profession without the license, and an extension petition generally must show that the worker has obtained the license, subject to limited exceptions.
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Records, Audits, and Site Visits
The Department of Labor may investigate an H-1B employer, often after a complaint, and USCIS may conduct site visits to verify petition information. Our H-1B Audits page explains public access file contents, record retention, Department of Labor investigations, penalties, and appeals. Our H-1B Site Visits page explains what employers should expect when USCIS visits a worksite.
Under a September 18, 2026 executive order, federal agencies are also directed to consider an employer’s recent or planned layoffs when reviewing LCAs, petitions, and visa applications. See our H-1B and H-4 Updates page for the current status.
H-1B Compliance Frequently Asked Questions
Can we stop paying an H-1B worker when there is no work?
No. Failing to pay the required wage during nonproductive time caused by the employer, such as a lack of assignments or client work, is prohibited “benching,” and calling an unpaid period a furlough does not change that. The wage obligation generally continues until the worker’s H-1B status expires or there is a bona fide termination.
Do we need a new LCA or an amended petition if an H-1B worker works from home?
It depends on where the home is and whether other terms of employment change. A home outside the area covered by the existing LCA generally requires a new LCA and an amended petition before work begins there, unless an exception such as a short-term placement applies. A home within the same area generally does not require an amended petition, but the LCA notice must still be posted for that location.
What must we do if we terminate an H-1B worker?
Notify the worker and USCIS of the termination, and offer to pay the reasonable cost of the worker’s return transportation to his or her last place of foreign residence. Until these steps are completed, the obligation to pay the required wage may continue. The employer should also address withdrawal of the LCA and keep the required records.
How long must we keep H-1B records?
Payroll records generally must be kept for three years from the date they are created. The public access file must be kept for one year after the last H-1B worker employed under the LCA stops working or, if no worker was employed under it, for one year after the LCA expires or is withdrawn. Records must be kept longer while an investigation is pending. Our H-1B Audits page explains what the public access file must contain.
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Talk with an H-1B Compliance Lawyer
Shihab Burke LLC Immigration Lawyers helps employers review H-1B compliance, prepare for worksite changes, and respond to agency inquiries. Contact our Columbus or Dublin, Ohio office, or call 866-665-0001, to schedule a consultation in person, by phone, or by video conference.
