In 2011, H1B Sponsor Companies have the same obligations than in 2010 for Recordkeeping, Reporting, Notices and Posters, when Hiring a Foreign National Worker on an H1B Visa
H1B Sponsor 2011 Notices and Posters
There is no poster requirement.
There is a notice requirement.
The H1B Sponsor must inform US workers of the intent to hire a foreign worker in 2011 by providing notice of the filing of the LCA to the bargaining representative if there is one, or, if there is no bargaining representative, by posting notice of filing in two conspicuous locations at the employer's establishments, or by providing electronic notice (see below). The notice must be provided on or within the 30-day period before the date that the labor condition application is submitted to DOL. The notice must:
- Indicate that H1B workers are sought
- Identify the number of H1B employees the employer plans to hire
- State the occupational classification of the H1B employees
- State the wages offered
- State the period of employment
- State the locations at which the H1B employees will work
- State that the LCAs are available for public inspection at the employer's U.S. principal place of business or at the worksite
The notice must include the following statement: "Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor."
If the sponsoring employer company is an H1B-dependent employer or a willful violator, and the LCA is not being used only for H1B exempt nonimmigrants, the notice must contain additional information and must also contain the following statement:
Complaints alleging failure to offer employment to an equally or better qualified U.S. applicant or an employer's misrepresentation regarding such offers of employment may be filed with the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices, 950 Pennsylvania Avenue, NW, Washington, DC 20530, Telephone: 1-800-255-8155 (employers), 1-800-255-7688 (employees)
As noted above, notification may occur in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the bargaining representative for workers in the occupation or, if there is no bargaining representative, be posted for 10 consecutive days in at least two conspicuous locations at each place where any nonimmigrant will be employed. Notice can also be provided by whatever electronic means the employer normally communicates with its employees (e.g., e-mail, bulletin board, and home Web page).
A copy of the LCA must be provided to each H1B nonimmigrant worker no later than the time the H1B nonimmigrant reports to work at the place of employment.
H1B Sponsor 2011 Recordkeeping
Employers of any H1B, H1B1, and E3 workers are required to make a filed LCA and its supporting documentation available for public inspection at the employer's principal place of business or at the place of employment of the H1B / H1B1 / E3 workers within one day after the date of submission of the LCA. This public inspection file must contain the following:
- A copy of the certified LCA including cover pages
- Documents providing the wage rate paid to the H1B nonimmigrant worker
- Method used to establish the "actual wage," including any periodic increases which the system may provide
- Prevailing wage rate and a general description of the methodology of the source
- Documents showing satisfaction of the union/employee notification requirements
- Summary of benefits offered to U.S. workers and H1B workers
- Where the employer utilizes the definition of "single employer" in the Internal Revenue Code (IRC), a list of any entities included as part of the single employer in making the determination as to its H1B-dependency status
In the event of corporate change, the public inspection file must also contain:
- A sworn statement by a successor entity accepting all liabilities of predecessor entity
- Affected LCA number(s) and effective date(s)
- Description of successor entity's actual wage system
- Successor entity's employer identification number
Additional documentation is required for employers who are H1B-dependent, willful violators, or TARP/Federal Reserve Chapter 13 recipients:
- List of "exempt" H1B nonimmigrant workers
- Summary of recruitment methods, if the employer hired any "non-exempt" H1B workers
In addition to the records listed above, every H1B dependent, willful violator employer, and TARP/Federal Reserve Chapter 13 recipient must keep the required documentation concerning compliance with the non-displacement obligation.
Additionally H1B, H1B1, and E3 employers in 2011 must maintain complete payroll records and make such available to the Wage and Hour Division upon request. The records must include the following information:
- Name, address, and occupation, for all H1B, H1B1, and E3 workers and any other worker employed by the employer in the same occupation at the place of employment
- Rate of pay, total wages paid each pay period, date of pay and pay period covered by the payment, and total additions to or deductions from pay each pay period for each H1B, H1B1, and E3 worker and any other worker employed by the employer in the same occupation at the place of employment
- Hours worked each day and each week by the employee if the employee is paid on other than a salary basis (with respect to H-1B, H-1B1, and E-3 workers and any other worker employed by the employer in the same occupation at the place of employment)
- With respect to only H1B, H1B1, and E3 workers, whether the worker is a part-time employee
- Documentation of the offer of benefits and eligibility for benefits provided as compensation for services
Payroll records for the nonimmigrant workers and other employees in the occupational classification must be maintained for a period of three years from the date of the creation of the records (or longer if an enforcement proceeding is in effect) and be kept at the employer's principal place of business in the U.S. or at the place of employment of workers in the H1B visa program.
The other records listed above must be kept for one year beyond the end of the employment period specified on the LCA, and be available at the employer's principal place of business in the U.S. or at the place of employment.
H1B Sponsor 2011 Reporting
After the LCA is certified, if there is a strike or lockout of workers at the place of employment in the same occupational classification as the H-1B nonimmigrants, the employer must notify ETA within three days.
H1B Sponsor 2011 Penalties/Sanctions
When violations are found, the Administrator of the Wage and Hour Division may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The Administrator may also impose other remedies, including payment of back wages.
Within 15 days of the date of the determination, any interested party may request a hearing on the Wage and Hour Administrator's determination before an Administrative Law Judge (ALJ). Within 30 days of the decision by an ALJ , an interested party may request a review of the ALJ's decision by the Department's Administrative Review Board.
Employers found to have committed certain violations may also be precluded from future access to the H-1B program as well as to other nonimmigrant and immigrant programs for a period of at least one year and as much as three years depending on the nature of the violation.
An H1B sponsoring 2011 company will be considered in compliance notwithstanding a technical or procedural failure if such employer:
- Makes a good faith attempt to comply;
- Voluntarily corrects violations within 10 business days of being advised by an enforcement authority;
- Has not engaged in a pattern or practice of willful violations; and
- For prevailing wage violations, can establish that the wage was calculated consistent with recognized industry standards and practices.
Relation to State, Local, and Other Federal Laws
Various federal, state and local labor standards such as the Fair Labor Standards Act, will apply to foreign workers employed in the U.S.