Willful violators and your rights as an H-1B visa recipient

As an H-1B visa holder, your sponsoring employer has an obligation to the United States government to uphold certain conditions and requirements. If your employer fails to abide by the requirements, it could result in monetary fines and their inability to sponsor future H-1B visa employees. 

Federal, state, and local laws protect your right to fair wages that are equivalent to your type of work, and the right to work in an environment that is free from discrimination, sexual harassment, and wage theft. Before agreeing to any commitment to a new employer, be sure to do your research to ensure that they are a reputable company that treats all of their employees fairly. 

H-1B visa program employer requirements

The H-1B visa is an employment-based non-immigrant visa that enables US employers to hire highly skilled workers from around the world. The rules and regulations behind the H-1B visa are designed to protect the H-1B visa employee and US workers by:

  1. Requiring labor certifications and attestations
  2. Implementing costly filing fees
  3. Obligatory extensive background documentation
  4. Conducting on-site employer investigations

The Immigration and Nationality Act (“INA” or “Act”) requires that an employer pay you, as an H-1B worker, the higher of the actual wage or the locally prevailing wage. The employer is also expected to maintain a public inspection file and payroll records that the Department of Labor (DOL) can audit. The files must be maintained for at least one year beyond the last date of which the H-1B employee was employed. Employers who fail to comply with the Department of Labor regulations may become subject to investigation, civil and administrative penalties, payment of back wages, and disbarment from participation in key immigration programs.

Your rights as an H-1B visa holder

As a work-based visa recipient, you are entitled to certain rights to ensure that you are being treated fairly. Some rights include:

  1. A signed copy of the Labor Condition Application (LCA) provided to you by your employer no later than the first day of your employment. You can use this document to verify year position within the company
  2. The refusal to allow your passport, visa, or travel documents to be withheld from you by your employer
  3. The refusal to sign any document regarding employment, and your right to request a change to the terms. However, the employer also has a right not to hire you based on the revisions you request
  4. The ability to view the public inspection file that your employer is required to maintain 
  5. You are not required to pay any part of the costs related to your H-1B petition, including filing, administration, or attorney fees
  6. To be hired as a W-2 employee and not as an independent contractor
  7. To receive the same benefits as the company’s American workers including work hours, healthcare benefits, sick and vacation time
  8. To pay that is not reduced or suspended because of non-productive or “benched” time caused by your employer
  9. To employer-paid transportation back to your home country if your employment is terminated before your H-1B visa expires
  10. To end your employment with your sponsoring company and not be charged a penalty by your employer
  11. To work part-time if your second employer files a new H-1B visa for you and you are not violating any terms of your current employer’s employment agreement 
  12. To start your own company, as long as you are not actively employed within that company, is it violates your H-1B visa status

H-1B audits

Through H-1B audits, the US Department of Labor (USDOL) monitors employers to ensure they are not violating the terms or conditions of the H-1B visa program. H-1B audits, also known as Labor Condition Application investigations (LCA investigations), are conducted by the Wage and Hour (WH) division of the USDOL. 

Investigations include interviews of current and former employees to verify pay rates, employment dates, and benefits as well as reviews of public inspection files. The investigations can result in fines as well as a one to a three-year ban from employing H-1B workers. 

During the investigation or audit, the USDOL looks for any LCA violations, such as:

  • Paying an H-1B employee lower than the required wage including any improper wage deductions—The USDOL investigator will look at job descriptions, job titles, duties, salaries, benefits, as well as other factors to determine whether an H-1B employer is in violation 
  • The start and end date of any H-1B employee—The investigator will factor in I-9 Form dates, starting dates of benefits packages, US admission dates of H-1B employees, and the date of the H-1B petition approval
  • Failure to follow LCA posting requirements—Hard copies of LCA filing notices are required to be posted in two conspicuous places for ten days, and electronic notices must be given to all affected employees as according to USDOL standards

Audits may occur as a result of employee complaints or a random selection. However, all H-1B employers who file an LCA should be prepared for an inspection, as it is part of the USDOL terms and requirements. It is important to note that “willful violators” or “H-1B dependent” employers are subjected to additional audit requirements. 

Willful violators and H-1B dependant employers

A willful violator is an employer that has violated the H-1B rules and has been denied the hiring of H-1B workers for a period of time. Examples of violations include knowingly and willingly providing any false information on the LCA and any supporting documents, or aiding, abetting, or counseling another organization to do so. If found to be in violation, the employer must comply with additional requirements or attestations under any LCA it files within five years of being subjected to a willful violation. 

An employer is considered to be H-1B dependant if it employs any of the following:

  • 25 of fewer full-time equivalent employees and at least eight H-1B workers; or
  • 26-50 full-time equivalent employees and at least 13 H-1B workers; or
  • 51 or more full-time equivalent employees of which 15% or more are H-1B workers

A “snap-shot” test may be used if dependency is not apparent or if it’s borderline. A snap-shot test compares the total number of all H-1B workers to the number of the entire workforce. If a small employer’s snap-shot test shows the employer is dependent or if a large employer’s calculation exceeds 15% of its workforce, the employer must then fully calculate its dependency status.

Willful violators and H-1B dependant employers are subjected to additional attestations when filing new LCAs. Namely, they need to prove that they have not fired, laid off, or demoted any US workers in the same position at the time they submitted an H-1B petition. They also must prove the active recruitment of US employees and that the job has been offered to any equally or better qualified US worker. The only exception to the additional attestations is if the H-1B worker has a master’s degree or higher, or will earn a base salary of at least $60,000. 

It’s important to note that there is proposed legislation to make it more difficult for willful violators and H-1B dependant employers to qualify for this exemption. The proposal seeks to raise the base salary amount to $100,000 and eliminate the master’s degree exemption. However, at this time, the proposed legislation has not been passed by Congress. 

What to do if your employer violates H-1B rules 

The H-1B labor program intends to ensure that American companies find the highly skilled talent they need when they can prove that there is a shortage of qualified US workers. The documentation and attestation requirements are meant to safeguard American jobs as well as to ensure that no one is getting paid less than legally owed or denied any benefits or equal treatment. 

To provide transparency, The Wage and Hour Division of the US Department of Labor maintains a running list of H-1B willful violators. If you think your employer is a violator, take notes and record specific details of any activity and report them to your supervisor or human resources department. 

You can also file a claim with the Wage and Hour Division. The law prohibits your employer from intimidating, threatening, or discriminating against you for disclosing any possible violations or for cooperating in any official investigations. To ensure that your rights and visa status remains protected, contact a reputable immigration lawyer.

Looking for Immigration Help?

Stump & Associates is Oklahoma City’s most respected immigration law firm. With more than 30 years of experience, we know how to handle cases just like yours.

Learn More

Comments are closed