Employers wishing to hire H-1B workers from abroad must comply with numerous requirements under federal law. The H-1B visa program enables professionals to work in the United States in specialty professions that require at least a bachelor’s degree (or equivalent).
Employers in the United States seek to hire H-1B workers when they are unable to find employees within the United States workforce who possess the necessary skills and abilities needed for a specialized position. The H-1B visa program involves not only immigration laws but also wage and hour laws.
H-1B Workers – Understanding Employer Obligation to Comply, in Good Faith, With DOL Wage Requirements
Employers must treat both United States workers and H-1B workers fairly and equally to ensure one group is not adversely affected by the other group. As stated by the United States Department of Labor, one requirement employers must follow is that they:
“must attest to the Department of Labor that they will pay wages to the H-1B nonimmigrant workers that are equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater.”
Employers must file a Labor Condition Application (LCA) with the Department of Labor before filing a petition to hire H-1B workers. The LCA is the way employers provide attestation/certification that they are complying with wage and hour laws and are doing so in good faith.
What H-1B Workers Should Know About the Definition of Compliance with DOL Wages Requirements?
The Department of Labor provides employers and employees with basic information concerning wage and hour requirements for H-1B workers. Department of Labor Fact Sheet #62T identifies the following requirements employers must meet to be considered in compliance with wage and hour laws:
- The employer makes a good faith effort to comply with DOL wage requirements and other laws;
- The employer voluntarily corrects any failure to comply with wage and hour laws within “10 days of having it explained by the Department of Labor or another enforcement agency;” and
- The employer has not engaged in a pattern of practice of willful violations of wage and hour laws.
If an employer is deemed to have violated wage and hour requirements in the course of an investigation, the employer “shall not be assessed fines or other penalties for such violation if the employer can establish that the manner in which the prevailing wage was calculated was consistent with recognized industry standards and practices.” Employees who believe their employers are violating wage laws should consider speaking with an immigration lawyer for guidance.
Because of the complexities of both immigration laws and wage and hour laws, it is best to seek the advice of a lawyer to ensure employer compliance with all laws and requirements. Any mistake in the H-1B application process can significantly delay the approval and issuance of an H-1B visa for a nonimmigrant worker.
H-1B Workers Should Contact Shihab Burke, LLC, Attorneys At Law Today to Discuss the H-1B Program
If you are an employer wishing to hire an H-1B worker or are a H-1B worker with questions about wage and hour laws, you may find the guidance you need by speaking with an immigration lawyer. At Shihab Burke, LLC, Attorneys At Law, our team of Columbus H-1B visa lawyers help employers and workers with the H-1B visa process.
Our legal team has offices located in Columbus and Dublin, Ohio, and Michigan, and Texas, but we operate nationwide and can meet the needs of clients from all locations within the United States. To find out how we can help you, contact Shihab Burke, LLC, Attorneys At Law today by calling (866) 665-0001 or by completing a form on our website.