The H-1B work visa can be extremely helpful to recruiting and onboarding folks into positions which you need specific skillsets or to fill an long-open need. The H-1B, though, comes with specific compliance requirements that employers should be aware of from starting the H-1B through the entire employment journey of an H-1B worker.
What kind of compliance requirements come with the H-1B?
Specifically, Employers that file H-1B petitions are required to have a certified Labor Condition Application ("LCA") from DOL and corresponding Public Access Files. The Public Access File (requirements at 20 CFR 655 Subpart H) contains a variety of memoranda/promises to the U.S. Government regarding terms and conditions of employment for the specific H-1B worker(s). Each filed LCA has its own Public Access File.
Where do employers run into compliance issues?
USCIS or DOL Auditors may come review these files and check in on the worker and employment at any time. Material changes or any changes without careful considerations can result in a finding of noncompliance. Noncompliance can result in fines, debarment from the program, and/or the worker being found in violation of their status.
Businesses are constantly moving to match market and strategy needs, but with H-1B workers job changes can be tricky. Changing titling, duties, supervisory responsibility, worksites can all create massive problems for Employers. Employers should not make changes to employment for H-1B workers without first analyzing the effect of the change. You can read more about the Material Change Analysis process and what to consider.
It is not uncommon for the person in charge of the immigration matters for a company (HR or Legal leaders) to be the last to know of any position change, which makes catching compliance issues difficult.
How to avoid noncompliance surprises?
We recommend Employers conduct proactive compliance Public Access File audits at regular intervals - quarterly or annually depending on the size of the company and their work visa population. A regular review of the public access file - the terms and conditions of employment - against current employment details can preemptively catch issues to avoid the hassle of catching it during an investigation with DOL or USCIS, for example.
There is more comprehensive training on H-1Bs available at Corporate Immigration Compliance Institute: LINK.
Business Immigration Lawyer
The information on this website is for general information purposes only, it is not legal advice applicable to a specific situation. Viewing it does not create an attorney-client relationship.
