H-1B Guide for Employees Required to Hire Immigration Counsel
Many foreign nationals are required by their U.S. employers to hire and pay for their own H-1B immigration lawyers. This guide is meant to help employees understand the process of seeking an H-1B lawyer and also explain the duties and obligations of the employer. For a very basic outline of the H-1B process, please visit our Basic H-1B Fact Sheet.
H-1B Representation Requires the Employer
Employees seeking out an H-1B lawyer are often under the impression they can obtain an H-1B visa without the employer’s involvement. This is a mistaken belief. The employer is the principal client in an H-1B case. The employer must provide most of the supporting evidence in an H-1B petition. The employer also places itself under certain obligations when sponsoring an H-1B employee, which it can be penalized for violating. The employer signs all H-1B petition materials. The employer must, therefore, be intimately involved in the H-1B process.
The lawyer’s principal client in an H-1B case is the employer. A duty of joint representation arises when an employee hires the H-1B attorney. This joint representation may result in a conflict of interest for the attorney. The employer and employee may be required to sign an agreement notifying them of the joint nature of representation and waiving confidentiality between the employer and employee.
The employer is also responsible for providing most of the evidence in an H-1B case. If H-1B sponsorship is to be successful, the employer must understand the obligation it is undertaking and be willing to assist the employee by providing the required supporting documentation. This evidence may include information that the employer considers private or confidential. The government may require the employer disclose federal tax returns, payroll tax filings, and wage information for its employees. For companies that provide technology consulting, the government may require mandatory disclosure of confidential and trade secret documents like contracts between clients and vendors. The government may even demand photographs of the employer facilities, including the employee’s workspace.
Employer Attestations Regarding Wage and Worksite Conditions
Even when an employee is responsible for hiring the H-1B attorney, the employer remains subject to a number of legal obligations, breach of which may subject the employer to civil liability or disbarment from the H-1B program.
The employer must file of a document called the Labor Condition Application (LCA) with the United States Department of Labor. By signing the LCA, the employer must promises that the contents of the LCA are true and that the employer will abide by the attestations contained in it. The employer attests it will:
- Pay the H-1B employee the Required Wage. The required wage is the greater of:
- The actual wage paid to the employer’s other employees at the worksite with similar experience and qualifications for the specific employment in question or
- the prevailing wage level for the occupational classification in the area of intended employment;
- The employer will provide working conditions for the H-1B employee that will not adversely affect the working conditions of workers similarly employed (including benefits in the nature of working conditions, which are to be offered to the H-1B employee on the same basis and accordance with those offered to U.S. workers);
- There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment;
- The employer has provided and will provide notice of the filing of the LCA to:
- The bargaining representative of the employer’s employees in the occupational classification in the area of intended employment for which the H-1B employee is sought or
- If there is no such bargaining representative, affected workers by providing electronic notice of the filing of the LCA or by posting notice in a conspicuous location at the places of employment and
- Providing a copy of the LCA to the H-1B employee.
The most common hurdle created by the LCA is the attestation regarding the required wage. The employer must attest it will pay the H-1B employee the GREATER of 1) the actual wage paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question or 2) the prevailing wage for the occupational classification in the area of intended employment.
The prevailing wage may be determined through several sources. The prevailing wage may be obtained from the Department of Labor Office of Foreign Labor Certification (OFLC) National Processing Center (NPC) Occupational Employment Statistics (OES) survey. The OES survey is the principal source for prevailing wage information. You can access OES information by visiting http://www.flcdatacenter.com. The prevailing wage may also be obtained through an independent authoritative source, other legitimate sources, or through the arithmetic mean of the wages of workers similarly employed. If there is a collective bargaining agreement, the collective bargaining terms control the prevailing wage.
Other Employer Obligations: The Required Wage and H-1B Fees
Employees seeking out H-1B representation should be aware of regulations controlling what expenses and fees the employee can be held responsible for. H-1B regulations prohibit employers from deducting certain expenses related to the H-1B process from employee wages. H-1B regulations have also been interpreted as prohibiting the payment of certain H-1B fees by the employee. While these regulations may not stop an employer from forcing an employee to bear all of the expenses related to H-1B representation, knowledge of these regulations may help an employee bargain the terms of employment.
Department of Labor regulations prohibit an employer from taking certain deductions from an H-1B employee’s wages. Such “unauthorized” deductions are considered to violate the H-1B employee’s required wage. Some of these prohibited deductions directly concern the costs and expenses related to the H-1B process.
One regulation prohibits recoupment of the employer’s business expenses. This includes “attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer (e.g., preparations and filing of LCA and H-1B petition).” This regulation is subject to multiple interpretations. Strictly construed, this regulation prohibits the employer from making any deduction from the H-1B employee’s wages. For instance, it would prohibit the employer from requiring the employee to reimburse H-1B expenses, even in the event of separation. This regulation may not prohibit the employer from requiring the employee to pay H-1B costs directly.
A second regulation directly prohibits the payment of certain H-1B filing fees by the employee. The regulation states, “The employer may not receive, and the H-1B nonimmigrant may not pay, any part of the $500 additional filing fee (for a petition filed prior to December 18, 2000) or $1,000 additional filing fee (for a petition filed on or subsequent to December 18, 2000), whether directly or indirectly, voluntarily or involuntarily.” Since the regulation has been implemented, the fees referred to have been changed. The regulation is generally interpreted to concern the current $750/$1,500 Education and Retraining Fee. The regulation may also be interpreted as including all related H-1B fees under INA § 214 (c). This would include the $500 antifraud fee.
In practical terms, these regulations may not prevent an employer from requiring the employee to pay the costs and expenses related to the H-1B process. However, understanding these regulations may help an employee negotiate more favorable terms of employment.
Contact The Chander Law Firm for H-1B Representation
We at The Chander Law Firm hope that you found the information in this article useful. If you are an employee responsible for hiring your own H-1B attorney, contact the law firm to discuss your options. We can assist you regardless of your location in the United States.
The Chander Law Firm, P.C.
3102 Maple Ave, Suite 450
Dallas, Texas 75201
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3102 Maple Ave, Suite 450
Dallas, Texas 75201
Nationwide Immigration Representation Toll Free 1 (888) 310-4044