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Employer’s Obligation to workers who have H-1B Visas

Employer’s Obligations to Workers Who Have H-1B Visas and Obligation to pay return travel expenses

1) Employer’s Obligation to Pay the H-1B Worker the Prevailing Wage: The employer is also obligated to pay the H-1B worker the “prevailing wage.” The prevailing wage is the wage that is paid to employees in the H-1B worker’s position and area of employment. The prevailing wage for the same position can differ from location to location. For example, the prevailing wage for a cardiologist working in the metropolitan area of Los Angeles, California will be very different from the prevailing wage for a cardiologist working in the rural area of El Paso, Texas. It is critical that the employer pay the H-1B worker the correct prevailing wage during the entire time of the worker’s employment. If the employer fails to meet this obligation, the employer will be required to pay the worker back wages, and can also incur other significant penalties and fines.

2) Employers are under an ongoing obligation to inform USCIS of any “material changes” in the H-1B worker’s employment. Unfortunately, immigration law does not define a “material change.” Any number of changes could be seen as material, such as changes in the worker’s job duties, job location, or position in the company’s hierarchy. Employers should use their best judgment and consult an immigration attorney in deciding whether or not a change is “material.” If a material change occurs, the employer must inform USCIS by filing an amended I-129 petition. The amended I-129 should contain all of the documents that the original I-129 contained, as well as an explanation of the material change and the reason for the change.

3) Employer’s Obligation to Treat the H-1B Worker and US. Department of labor and immigration laws prohibit employers from discriminating against workers on account of the workers’ national origin. An H-1B worker must be treated the same as all of the employer’s U.S. workers. The employer must provide the H-1B worker with the same benefits (stock options, sick leave, insurance, and so forth) as those provided to U.S. workers, and H-1B workers cannot be passed over for promotions or other rewards on account of their H-1B status.

4) Employer’s Obligation to Pay or the H-1B Worker’s Return Trip Home: Immigration law requires the employer to pay for the reasonable costs of transporting the H-1B worker to his or her home country if the employer dismisses the worker before his or her H-1B status expires. However, if the worker quits the job before his or her status ends, the employer is not responsible for the costs of the worker’s return trip home. The Return Transportation Costs, Benching Rule, and Departure Penalties Prohibited The employer must pay the return transportation costs of the H-1B employee, if the employee is dismissed prior to completion of the approved H-1B term. The employer needs not to pay if the employee voluntarily quits. In any case, the employee can file a complaint if the employer fails to pay transportation home. In practice, however, the foreign national often looks for another job, and obtains a new H-1B or other visa status in the U.S., so that the return costs issue has not been a big issue.

If H-1B employees are “benched” due to the employer’s business reasons, such as the lack of available work, then they must still be paid for the full hours specified on the H-1B petition. If an employee is absent based issues not work related, such as personal or health reasons, then the above provision does not apply.

It is illegal to require an H-1B employee to pay a penalty merely for leaving the employer. However, it is permissible to require an employee to reimburse the employer for actual expenditures incurred by the employer, if the employee leaves the employer within certain time frames agreed to by the parties. Examples where the employer may require reimbursement include airline tickets to enter the U.S. for the H-1B employee and family members, tuition for attending seminars while on the job, hotel costs while locating a home or rental property, etc.

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