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An Employer's Ongoing Obligations to Their H-1B Employees

September 2013

By: Ryan M. Helgeson, Esq.

The H-1B visa classification permits a foreign national to work in the United States for a temporary period. It is available for offers of employment that are in a specialty occupation ( i.e. those that require a bachelor's degree). Employers should be satisfied that the H-1B petition was approved and that their new professional employees are starting work - and that their business is growing. However, employers have on-going obligations to maintain compliance with the H-1B regulations. The employer's obligations are as follows:

  • Start the employee within 30 days of entry into the United States. If the H-1B employee is entering the U.S. from overseas to begin employment with the U.S. business, the employment must begin within 30 days of entry into the U.S.
  • Provide a copy of the approved Labor Condition Application. On the first day of the visa holder's employment, the H-1B employee should be given a copy of the approved Labor Condition Application for their position.
  • The H-1B employee may not be "benched." The employer is not allowed to place the H-1B employee in a non-working status and fail to pay that employee after they have started their H-1B employment. In other words, unless terminated, the H-1B employee must continue to be paid their wages, even if they are not working. The no-benching rule does not prevent the employee from asking for and using leave, such as under the Family and Medical Leave Act.
  • Maintain a public inspection file. The employer must maintain certain records about the H-1B employment, either at the work site or at the employer's primary place of business. The employer's immigration lawyer should provide the employer with this public inspection file at the time of filing the H-1B petition. The records in the file must be available to the public or to auditors upon request. The required records include information about the H-1B worker's rate of pay, benefits information, and a copy of the Labor Condition Application. It is also recommended that the employer conduct periodic audits of their public inspection files.
  • If the employee is placed at a different work location, the employer must submit a Labor Condition Application for each new location. Thus, before the employee begins working at client sites or is transferred to a new location, the employer must submit a Labor Condition Application for each geographic location. Approval of the Application is required before the H-1B employee can be transferred.
  • If the H-1B employee is terminated before the visa expires, the employer must pay for the employee's return trip home. Because the termination of H-1B employment automatically ends the authorized stay of the employee, the employee must exit the U.S. promptly. The employer is obligated to offer the terminated H-1B employee a one-way plane ticket back to his or her home country. This obligation does not extend to family members or to destinations other than the employee's home country.

If you have questions regarding H-1B visas or any other employment immigration question, Attorney Ryan Helgeson is happy to help you. Please contact Ryan at (630) 377-1554 or at ryhelgeson@wesselssherman.com.