If a company lawfully employs a worker who is not a U.S. citizen, and who is not a lawful permanent resident (a “green card” holder), that worker likely has an H-1B non-immigrant visa. The H-1B visa is a very common employment visa in the U.S. It allows an individual to work in the U.S. on a temporary basis. The basic requirement for an H-1B visa is that the position be in a “specialized occupation.” A specialized occupation requires the attainment of at least a bachelor’s degree in a specified field. The individual must possess that degree, or the equivalent of a degree based upon work experience.
The applicable H-1B regulations, which are enforced primarily by the Department of Labor, impose certain obligations on an employer that employs a worker in H-1B status. The most important of those obligations are that the employer:
- Pay the H-1B worker the “required wage rate” applicable to each permanent worksite. This required wage rate is called the prevailing wage and is dictated by either the Department of Labor or Collective Bargaining Agreement, if applicable;
- Offer the H-1B worker the same working conditions and fringe benefits that are offered to similarly employed U.S. workers;
- Not employ an H-1B worker if there is a strike or lockout in progress in the worker’s occupation at his or her worksite;
- Notify workers or their bargaining representative of the intent to employ an H-1B worker at any location where other workers are in the same occupational classification for which an H-1B worker is sought or placed;
- Notify United States Citizenship and Immigration Services (“USCIS”) of any changes in the H-1B worker’s work status;
- Notify USCIS of the termination and offer to pay the individual’s return transportation back to his or her home country if the employer terminates the H-1B employment.
A problem arises in the H-1B context where the employer is short of work or funds. Ordinarily, the employer might lay off employees until business returns. However, the employer cannot layoff H-1B nonimmigrants with the intention of re-hiring them when business returns. There is an obligation to pay the employee the prevailing wage during the H-1B period, regardless of whether any work is actually performed.
The duty to pay the prevailing wage can continue even after the worker has been fired. This duty continues if termination of the employment was not done properly for USCIS purposes. In order to have an effective termination of the employment relationship, the following steps must be taken:
- The employer must notify USCIS of the termination;
- It is recommended that Department of Labor also be notified of the termination; and
- The employer must offer to pay the former employee the cost of return transportation to his or her home country.
If these steps are not followed, the employee is entitled to back pay through the end of the H-1B petition validity date, even if the worker no longer is employed by that employer and may in fact have found a new employer.
If you or your employer have any questions about the H-1B process or its obligations, please contact one of the St. Louis, and Clayton, MO immigration attorneys at Paule, Camazine & Blumenthal, P.C.