The U.S. Department of Labor has provided an employment law compliance guide, which sets forth the prerequisites for employers seeking to employ H-1B workers. One of the most important requirements is that an employer pay H-1B workers at least the local prevailing wage or the employer’s actual wage, whichever is higher, and offer them the same benefits that are offered to U.S. workers.
The number of new H-1B visas that can be issued each fiscal year is 65,000. An additional 20,000 are available, but only to individuals who have received a master’s degree or higher from a U.S. educational institution.
Additional rules apply to employers that have willfully violated the H-1B rules, or those dependent upon H-1B workers, which means that at least 15 percent of the employer’s workforce is comprised of H-1B workers. In their Labor Condition Applications (LCAs), these types of employers must attest, among other things, that:
- The employer is not displacing any similarly employed U.S. worker within 90 days before or after applying for H-1B status, or offering an extension of status for any H-1B worker.
- The employer makes good faith efforts to recruit U.S. workers for the job for which the foreign worker is sought, at wages at least equal to those offered to the H-1B worker.
- The employer offers a job to a U.S. worker who applies and is equally or better qualified than the H-1B worker.
H-1B workers and U.S. workers both have many rights under the law:
- They must be given a copy of the employer’s LCA.
- Employers may not require the worker to pay a penalty for leaving their employment prior to any agreed date.
- U.S. workers may not be laid off within 90 days before or after the employer files a petition to hire an H-1B worker in an essentially equivalent job.