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H-1B Visa Wage Requirements and Employer Recordkeeping Responsibilities

Employer Responsibilities When Hiring, Employing Foreign Workers


Wage Requirements for H-1B Visa Employers

Employers who hire temporary foreign workers under the H-1B visa program must establish the prevailing wage for the job in the geographic area in which the person will be employed. This information may be available from the state or from a published survey that meets the Department of Labor's requirements.

Employers must also maintain certain documents that will allow them to prove the validity of statements made in the labor condition application (LCA).

H-1B Employer Recordkeeping Responsibilities

If you are employing a professional worker through the H-1B visa program, you must make the following documents available for plubic examination within one day of filing the labor condition application:

  • A copy of the certified labor condition application (Form ETA 9035 or Form ETA 9035E) and cover pages (Form ETA 9035CP). If you file the LCA by fax, keep a copy with the original signature. If you filed electronically, keep a signed printout at your place of business.
  • Documentation of the wage rate you will pay the employee.
  • An explanation of how you set the "actual wage" you have paid or will pay the employee. This can be a summary of the pay system or scale, including any opportunity for wage increases.
  • A copy of the documentation used to establish the "prevailing wage." This includes a description of the methods used and, if requested, the underlying wage data input into the calculation.
  • Documents satisfying the union/employee notification requirements.
  • A summary of the benefits offered to U.S. workers in the same occupational classifications as H-1B nonimmigrants, and a statement, if applicable, explaining if and how benefits differ between H-1B and U.S. employees.
  • If your company changes its structure, there must be a sworn statement by the responsible person in the new structure that the new entity accepts all the duties and obligations stated in the Labor Condition Application (LCA).
  • Where the employer utilizes the definition of "single employer" in the Internal Revenue Code (IRC), a list of any entities included as part of the single employer if the H-1B employee is employed by a single employer.
  • Where the employer is H-1B-dependent and/or a willful violator, and indicates on the LCA(s) that only "exempt" H-1B nonimmigrants will be employed, a list of such "exempt" H-1B nonimmigrants.
  • Where the employer is H-1B-dependent or a willful violator, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers (or copies of pertinent documents showing this information).

The above records must be retained for one year from the last date on which any H-1B nonimmigrant is employed or one year from the date the LCA expired or was withdrawn. Payroll records for both the H-1B and U.S. employees in the same job classification must be retained for at least three years. If there is an enforcement action, the payroll records must be retained until the issue is resolved.

To discuss your specific H-1B visa concerns, please contact an immigration lawyer at May Law Group. We offer a free initial consultation. From offices in New York City, and Pittsburgh and Philadelphia, Pennsylvania, we represent clients from throughout the U.S. and around the world.

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