Your H-1B Employee Can File a Non-Compliance Complaint. What Employers Need to Know.

H-1B visa holders are allowed to work temporarily in the U.S. for sponsoring employers and they often comprise of highly skilled professionals working in the difficult to fill positions in the tech, medical and education industries. In most business circumstances, hiring an H-1B visa holder is a successful and thriving event for both the employer and the employee. The employers, however, should be aware that the employment relationship between the H-1B visa holder and its sponsoring employer is legally protected. It means that either party is entitled to file a non-compliance complaint against the other side, so it is crucial for each party to clearly know their legal rights and responsibilities, the consequences of non-compliance acts, as well as the legal methods for protection.

H-1B Holders’ Legal Rights

H-1B visa holders’ legal rights are subject of both the federal immigration law and the state labor law which may be different from state to state. However, in general, the H-1B visa holders’ legal rights can be summarized as below:
• His/her employment terms should be in the same with those specified on the Labor Condition Application (LCA) filed with the United States Department of Labor;
• Paid wage must be equal or higher than the prevailing wage for the specific position for the whole duration of the LCA validity, even if benching;
• A non-discrimination working environment should be provided. For example, fringe benefits, working time, holidays, and insurance must be offered on the same basis with other employees in the same company, and such information is normally formulated in the staff manual of the employer;
• Termination of employment can be submitted upon whatever reason before the end date of employment specified on the LCA. Further, H-1B employee is entitled to a return trip to a home country.
In a word, H-1B visa holders shall have the rights specified on the H-1B petition documents by its sponsoring employer submitted to USCIS for the visa application and should not be discriminated against other U.S.employees.

Obligations of H-1B Holder’s Sponsoring Employer

In short, the obligations of H-1B sponsoring employer can be summarized as below:

• H-1B visa holder’s sponsoring employer shall fully abide by the terms and conditions offered to the H-1B applicant which are specified in both the LCA and the employment contract;
• Maintain proper H-1B compliance paperwork, as required by the immigration law;
• When the H-1B employee is laid off, the employer must pay for the one-way transportation cost back to the home country;
• H-1B holder’s sponsoring employer shall not intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing violations of H-1B provisions or for cooperating in an official investigation of the employer’s compliance;
• H-1B holder’s sponsoring employer cannot retaliate against H-1B visa holder for bringing a complaint against it to the Department of Labor, for example, for firing issues.

Information on Complaints Filed by H-1B visa Holder and the Relevant Consequences

The most common complaints filed by H-1B visa holders are typically based on one of the following three allegations: (1) H-1B employee is paid lower than the full salary mentioned on LCA, (2) H-1B employee is asked to bear the cost of H-1B filing fees which should be paid by the sponsor, or (3) is laid off illegally.
If the complaints are supported by the competent authorities, normally the sponsoring employer will be imposed a civil penalty ranging from $1,000 to $35,000 per violation depending on the type and severity of the violation. Other penalties including payment of back wages may be imposed as well. In some severe cases, certain violators may be banned from future access to the H-1B program and other immigrant programs, resulting in disbarment. In addition, a comprehensive DOL investigation may incur which is not good for the reputation of the employers.

The Best Defense Is To Be in Full Compliance

U.S. companies hiring H-1B visa workers should take steps to ensure full compliance with LCA regulations and engage in a program of meticulous record-keeping with regard to its H-1B nonimmigrant employees. The regulations are clear insofar as they provide a checklist of the items that are requires to be kept in the Public Access File – which is required to be kept by an employer immediately after the Labor Condition Application is filed with the U.S. DOL.

It is true that the relevant regulations for the preparation and maintenance of the LCA and the Public Access file for the H-1B nonimmigrant workers are, at times, convoluted and confusing, but maintaining proper H-1B compliance paperwork is a matter of patience and careful record-keeping. The company should develop and maintain policies with regard to its H-1B nonimmigrant foreign employees to ensure consistency and reduce the probability of employee complaints. If compliance is an issue, the company may wish to conduct an internal audit of all applicable records, preferably with the assistance of a professional immigration firm.

So your H-1B employee already filed a complaint. Now what? If that should happen, the company should immediately take action to address the alleged shortcomings and defend the company’s practices. If the reason for the complaint is apparent, rebuttal information should be gathered and prepared. Employees who may be impacted should be notified about the investigation and be provided with coaching about the proper response.

Coaching of HR employees will help to minimize the negative affect within the office. If the reason for the complaint is unknown, the company should conduct an audit to identify weaknesses and prepare a rebuttal. In some circumstances, as suggested above, the company may find it appropriate to hire immigration attorneys to assist with the audit. In some cases the audit may require the services of a criminal attorney (if the violation appears to be sufficiently egregious).

How We can Help

The Capitol Immigration Law Group PLLC in Washington DC and Bethesda Maryland is a professional immigration law firm. We can assist in formulating or reviewing the companies’ internal HR related policies, and providing assistance and explanation on H-1B record keeping as well as providing advisories on employee’s complaints.

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