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This H-1B Fact Sheet discusses key H-1B issues such as the annual H-1B cap, H-1B cap exemptions, H-1B fee exemptions, H-1B portability, benching, attorney fees and penalties for H-1B related violations. See also our related article discussing H-1B-dependent employers.
Some H-1B employer-petitioners and/or H-1B workers-beneficiaries are exempt from the annual H-1B Visa quota. These include:
Employers exempt from paying the H-1B training fee (i.e., the $750 or $1500 fee in addition to other US Government fees for each H-1B petition; amount depends on size of employer) include:
H-1B portability allows a nonimmigrant previously issued H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition (including a certified LCA) with USCIS. Previously, individuals in this situation had to await USCIS approval before beginning new H-1B employment.
To qualify under this provision, the new employer must have filed a non-frivolous petition (a petition with some basis in law or fact) while the alien was in a period of stay authorized by the Attorney General. The H-1B worker must be a nonimmigrant admitted to the US (no particular temporary visa category is specified, but the individual must have been previously issued H-1B status). The employee cannot have been employed without authorization before filing the H-1B. They also must be in an unexpired period of stay at the time of filing the new petition. In addition, to take advantage of H-1B portability provisions, the US must have lawfully admitted the H-1B worker. Finally, subsequent to such lawful admission, the H-1B worker seeking to port must not have been employed without authorization.
The American Competitiveness in the 21st Century Act of 2002 (AC21) provides for H-1B extensions beyond the usual 6 year maximum in two circumstances:
When a corporate reorganization occurs, an employer that meets DOL conditions need not file new LCA’s to continue employing existing H-1B workers. However, the new entity must maintain a list of H-1B workers transferred to it. They must also maintain in the public access file a list of affected LCA numbers and dates of certification. In addition, they must add a description of the new entity’s actual wage system and the federal Employer Identity Number (EIN) of the new entity. Also, the employer must include a sworn statement from the new entity’s authorized representative expressly assuming the liabilities and obligations of the existing LCA’s. This statement must also include certain specified language (including assumption of liability for any of the previous entity’s violations under the LCA).
The new entity is not authorized to employ the predecessor’s H-1B employees unless they execute this statement and place it in the public access file. Alternatively, they may file new LCA’s and H-1B petitions. Successor employers cannot use the predecessor company’s existing LCA’s to file new petitions or extend existing petitions. A change in H-1B dependency status due to restructuring has no effect on the employer’s obligations regarding existing H-1Bs. But any new H-1B hire or extensions of status for existing H-1B workers are subject to whatever rules would now apply to the employer (H-1B dependent or non-dependent.)
If an employer decision places an H-1B worker in nonproductive status, e.g., lack of work assignments, or lack of permit or license, the employer must pay them the full pro-rata amount due. The employer may pay part-time H-1B workers in nonproductive status at least the hours indicated on the H-1B petition. If this is a range, then the employer must pay for the average number of hours they ordinarily work.
Moreover, if an H-1B employee regularly works more than the designated number of part-time hours stated on the petition, the Department of Labor (DOL) may charge the employer with misrepresentation. For nonproductive periods due to conditions unrelated to employment, at the worker’s voluntary request and convenience, the employer is not required to pay the worker. Examples of such circumstances may include an employee caring for a sick relative or the employee touring the US. However, this is only the case if the employer is not obligated to pay the worker, and provided such period is not subject to pay under the employer’s benefit plan or other statutes.
DOL cannot forgive H-1B employers from compliance due to annual plant shutdowns, holidays or other events that affect both US workers and H-1B employees.
However, DOL views US worker lay-offs in such situations while retaining H-1B’s as a possible violation of other nondiscrimination laws. DOL also views such an action as violative of ACWIA‘s layoff attestation for H-1B-dependent employers. These obligations begin once an H-1B worker first makes themself available for employment.
Once USCIS approves a petition, the required wage must commence 30 days after first admission to the US. This is so even if the H-1B worker has not yet begun work. If they are in the US, it must start 60 days after the employee first becomes eligible to work for the employer. The latter is the start date on the petition or when USCIS renders a status decision, whichever is later. Payment obligation ends if there has been a bona fide termination of the H-1B worker’s employment relationship.
A worker cannot pay attorney fees and other costs connected to the performance of required H-1B functions if this brings the wage below the higher of the actual or the prevailing wage. This includes preparation and filing of the LCA and H-1B petition. If such payments would not reduce the employee’s wage beneath the required wage, they are permissible. Deduction of such fees and costs from the H-1B’s wages is “recoupment of the employer’s business expense.” 20 CFR §655.731(c)(9)(iii)(C). This is an unauthorized deduction from wages. 20 CFR §655.731(c)(12).
ACWIA prohibits penalties on H-1B workers for ceasing employment prior to an agreed date. But the employer-sponsor may seek liquidated damages in such a case, defining liquidated damages by reference to applicable State law. (The definition can vary from US state to US state.) However, employers cannot collect liquidated damages by deduction from an H-1B worker’s paycheck. An employer may include recoupment of H-1B related attorneys fees in liquidated damages. However, the $750 or $1,500 “training” fee can never be part of liquidated damages. Empoyers cannot recoup it in any form.
Employers must offer benefits to H-1B’s on the same basis, and under the same criteria, as similarly employed US workers.
Benefits include the opportunity to participate in such programs such as:
For an H-1B worker placed in the US for 90 or fewer continuous days, employers need offer no benefits if they remain on home country payroll and receive home country benefits without interruption. The employer must treat US workers in the same manner if they are working abroad.
H-1B workers placed in the US more than 90 continuous days must meet the above conditions. The employer must also pay them home country benefits equivalent to those the employer offers to similarly employed US workers.
NOTE: The law and regulations pertaining to the H-1B Visa are extensive, complicated and detailed. This summary touches only on some important H-1B Visa related topics. It does not serve as legal advice to any particular case. We suggest that you not rely on this article to make important decisions regarding your situation. The US immigration landscape and its complex rules and procedures can change quickly and unexpectedly. So, we recommend consulting a qualified attorney to discuss any particular issues you may be facing.