Department of Labor Issues
The Department of Labor (DOL) regulations which govern the H-1B process are designed to ensure that the petitioning employer is not placing U.S. workers at a disadvantage in the hiring and employment process. One of the ways that DOL accomplishes this is by placing wage requirements on the H-1B. The university must document in the H-1B process that it is paying either the prevailing or the actual wage to the H-1B employee, whichever is higher.
The prevailing wage rate is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment. The OIS obtains prevailing wage determinations from the U.S. Department of Labor. Prevailing wage determinations can take up to 60 days to be processed by the DOL.
The actual wage is defined as what the university pays to “similarly situated employees” ⇒ meaning employees with the same job title in the same department with similar experience, qualifications, and job duties. The employing department completes the actual wage questionnaire included in the H-1B packet to document this. The university is required to pay the higher of the prevailing or actual wage to the H-1B employee.
Payment of Fees Associated with H-1B Sponsorship
The Department of Labor considers the costs associated with H-1B sponsorship to be a business expense to be borne by the employer (i.e., the university). Any fees that the prospective H-1B employee pays in connection with the filing of an H-1B petition are considered a reduction in salary. As such, all required fees associated with H-1B sponsorship must be paid by the employing department. The university cannot be reimbursed for these expenses by the H-1B employee.
If premium processing is required for employment reasons, then the employing department must also pay the premium processing fee. In an audit of H-1B employees, the Department of Labor will require the employer to reimburse the fees if paid by the employee or found to be charged to the employee.
Part-time H-1B Employment
If an H-1B employee will only be employed part-time, the university is obligated under Department of Labor regulations to maintain documentation of the number of hours worked each week. This requirement includes both exempt and non-exempt positions as defined by the Fair Labor Standards Act (FLSA). The employing department will be required to maintain weekly time sheets for part-time H-1B workers. The time sheets must be maintained for 3 years following the end of employment in the event of an audit by the Department of Labor.
The employing department will be required to provide an estimate of the number of hours per week the H-1B employee will work (a range is acceptable). An annualized salary will be converted to an hourly rate, based on the average number of hours per week the employee is expected to work.
The university is obligated to pay the full annualized salary as listed in the H-1B paperwork. Furthermore, if the employee exceeds the number of hours per week as listed in the H-1B request, the university is obligated to pay the employee for those additional hours at the hourly rate as calculated.
Labor Condition Application (LCA)
Once the prevailing wage has been obtained, the OIS must file a Labor Condition Application (LCA) with the Department of Labor. The LCA affirms that the employer will pay the higher of the prevailing or actual wage, and that the employment of the H-1B worker will not adversely affect the wages and working conditions of other workers in the occupation.
LCA regulations require that an announcement of the intention to hire an H-1B worker be posted for 10 consecutive days in at least 2 conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed during the 30 days prior to the certification of the Labor Condition Application.
The OIS will provide the hiring department with a copy of the LCA to post. Once the department has provided the OIS with the dates and locations of the postings, the OIS will submit the LCA to the Department of Labor for certification. DOL can take up to 7 federal business days to certify the LCA. On completion of this step, the application is ready to move forward to USCIS.
Public Access Files
The employer is required to maintain a “public access file” for each H-1B employee. The OIS assumes the responsibility of maintaining these files. Files are maintained for 1 year beyond the authorized period of employment as stated on the LCA, or for 1 year from the date the LCA is withdrawn, if employment is ended before the expiration date of the certified LCA. Files include the following information and must be made available to any member of the public who requests to review it:
- Proof of the Prevailing Wage
- A certified LCA
- Evidence of the posted notices and the verification of the posting locations
- Proof that the employee received a copy of the certified LCA
- Statement of the wage rate paid to the H-1B worker
- Actual wage statement
- Benefits documentation