H-1B1 Visa Compliance for Employers: What You Need to Know

Hiring foreign talent through the H-1B1 visa program can be a straightforward process for U.S. employers—especially since it does not require the initial USCIS petition that the H-1B visa does. However, employers still have a range of legal obligations to ensure proper compliance. Consulting an experienced H1B1 Visa lawyer can help employers navigate these obligations effectively. This article provides an overview of those responsibilities and the best practices to maintain good standing under U.S. law.

1. Understanding the H-1B1 Visa

1. Target Group
   • The H-1B1 visa is available only to citizens of Chile and Singapore.
   • Like the H-1B, it is for specialty occupations requiring a bachelor’s degree or equivalent experience.
2. Key Differences from H-1B
   • No lottery system: H-1B1 visas have separate quotas (1,400 for Chileans and 5,400 for Singaporeans), which are rarely met.
   • One-year validity: H-1B1 visas are granted in one-year increments, renewable indefinitely, as long as eligibility is maintained.
   • Non-immigrant intent: H-1B1 does not allow dual intent, so workers must prove their intent to return to their home country.

2. Labor Condition Application (LCA) Requirements

1. Filing the LCA
   • Employers must file an ETA Form 9035/9035E (LCA)with the U.S. Department of Labor (DOL).
   • This confirms that the employer will comply with wage requirements, working conditions, and other stipulations.
2. Prevailing Wage
   • The wage offered must meet or exceed the prevailing wagefor the geographic area and occupation to ensure it doesn’t undercut U.S. workers.
3. Public Access File
   • Employers must maintain a Public Access Filethat includes the LCA, documentation of the prevailing wage, and a statement of the wage rate paid to the H-1B1 employee.
   • The file must be available at either the employer’s principal place of business or the worksite.

3. Wage and Working Conditions

1. Wage Obligations
   • Employers must pay the H-1B1 worker at least the required wagespecified in the LCA from the day the worker starts employment.
   • Delayed wages or paying below the stated wage can lead to fines and penalties.
2. Working Conditions
   • H-1B1 workers must be offered the same working conditions as U.S. employees in similar roles (including benefits like health insurance and leave policies).
   • Employers must ensure that hiring an H-1B1 worker does not adversely affect the working conditions of U.S. workers.

4. Recordkeeping and Audits

1. Maintaining Proper Documentation
   • Keep accurate records of wages, hours worked, and other employment details for each H-1B1 employee.
   • Retain copies of the certified LCA and other key documents (e.g., job offer letter, proof of qualifications) in your employee files.
2. DOL Audits
   • The Department of Labor can audit employers to verify compliance.
   • Failing an audit can result in fines, suspension from immigration programs, or other legal penalties.
3. Duration of Record Retention
   • Employers must keep the LCA and related documentation for one yearbeyond the last date the H-1B1 worker is employed under the LCA or for one year from the date an LCA is withdrawn, whichever is later.

5. Notice and Posting Requirements

1. Posting the LCA
   • Employers must provide notice of the LCA filing to employees. This can be done by:
     • Posting a physical notice at the place of employment, or
     • Electronically posting on the company’s intranet or via email to all employees in the occupational classification at the worksite.

2. Content of the Notice
   • The notice must include the position title, wage rate, and the fact that the LCA has been filed with the DOL.
   • It should also provide instructions on how to report alleged violations if employees suspect non-compliance.

6. Changes in Employment Conditions

1. Material Changes
   • If an H-1B1 worker’s job location, duties, or salary change significantly, employers may need to file a new LCAand the worker may need a new visa stamp if outside the U.S.
   • Common scenarios requiring a new LCA include moving the employee to a different state or worksite, or a substantial alteration of job duties.
2. Changing Employers
   • If an H-1B1 worker changes employers, the new employermust file a fresh LCA and follow the standard H-1B1 application process at the consulate (or reapply in the U.S. if permitted).
3. Termination and Layoffs
   • If the employer terminates the H-1B1 worker prematurely, the employer may be responsible for the return transportation costto the worker’s last country of residence.
   • Not complying with the obligation for return transportation can lead to legal consequences.

7. Best Practices for Employers

1. Stay Organized
   • Use a calendar or tracking system to monitor each visa holder’s status, LCA validity, and renewal deadlines.
2. Train HR Staff
   • Ensure human resources personnel understand the specific requirements of H-1B1, including posting, wage requirements, and recordkeeping rules.
3. Consult Legal Experts
   • If you have questions about LCA filings, wage determinations, or changes in employment conditions, consult an immigration attorney to avoid costly mistakes.
4. Maintain Clear Communication
   • Update H-1B1 employees regularly about any changes in company policies, benefits, or job requirements.
   • Encourage employees to notify you promptly if their role evolves or they plan to move to a new work location.

8. Common Mistakes to Avoid

1. Underpaying or Delaying Wages
   • Any wage shortfall or delayed payment is a direct violation of LCA rules and can trigger complaints or audits.
2. Neglecting Posting Requirements
   • Failure to publicly post the LCA notice can result in penalties if discovered during an audit or if an employee files a complaint.
3. Ignoring Timely Renewals
   • The H-1B1 visa must be renewed annually. Employers who fail to track expiration dates risk losing a valued worker’s authorized status.
4. Overlooking Non-Immigrant Intent
   • H-1B1 employees must maintain non-immigrant intent. Employers should avoid any arrangements that contradict this requirement (e.g., starting a green card process) unless the employee transitions to a different visa category that supports dual intent.

9. Preparing for Future Policy Changes

• Stay Updated: Immigration policies can shift rapidly. Regularly check the Department of Labor and USCISwebsites for the latest rules affecting H-1B1 workers.
• Reassess Compliance Periodically: Conduct internal audits of your LCA files and posting practices to ensure ongoing adherence to current regulations.

Conclusion

While the H-1B1 visa offers an efficient pathway for U.S. employers to hire highly skilled professionals from Chile and Singapore, it also comes with specific compliance obligations. By understanding these requirements—particularly around LCAs, wages, posting, and recordkeeping—employers can minimize legal risks and foster a supportive work environment for H-1B1 employees. Proactive planning, consistent monitoring, and consultation with immigration experts are the keys to successful H-1B1 hiring and retention.