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The choice to sponsor an H-1B petition should not be made until the department is comfortable operating under the legal regulations imposed by the DOL. Failure to comply with these regulations can result in civil and administrative penalties, payment of back wages, and even debarment from participating in key immigration programs. Please pay close attention to the following obligations.
- Termination. The most infamous regulation concerns termination of employment. In the event you find it necessary to terminate the worker's employment prior to the end date of the visa the department is legally obligated to pay the reasonable transportation costs of returning the worker to his/her home country. This obligation extends to the worker and not to the worker's dependents. HR must be immediately notified of a termination. We are obligated to continue paying this employee until we notify the United States Citizenship and Immigration Services (USCIS) or the H-1B visa has ended.
- Material Change. A second and equally important regulation concerns notifying the USCIS in the event of a material change in employment terms. The H-1B visa is valid for employment only by the sponsoring entity. It covers employment for a particular position, for specific rate of pay, for a specific FTE, and a specific period of time. Before changing any of these factors consultation with HR is mandatory. We will assist in determining if the change is appropriate under the current terms of employment or if we should file an amended petition with the USCIS.
- Benching or LOA status. You cannot place an H-1B employee on a leave of absence if you run out of funding.
- Prevailing Wage. The prevailing wage is determined by the Missouri Department of Economic Development. The department must pay the prevailing wage or the actual wage whichever is higher. The actual wage is defined as the average wage paid for employees with similar qualifications, experience and education in similar positions. We must post information containing the prevailing wage (known as the LCA) and we must also provide a copy of the same information to the intended beneficiary.
- Departmental Fees. The general filing fee for H-1B processing is $325.00. Also, there is a $500 fee for Fraud Detection/Prevention for petitions filed for an employer's new H-1B employees. This fee is not required for existing H-1B employees who are seeking to extend their H-1B status with the same employer. At Missouri S&T, these fees are paid by the department requesting the H-1B. There are severe penalties assessed against employers if they try to pass this cost on to the H-1B applicant.
- Strike. Employers can’t use H-1B employees to break a strike, and must notify their U.S. workforce when they hire an H-1B worker. Employers cannot make the H-1B employee work under conditions different from their U.S. coworkers, including hours, shifts and benefits.
- Not Replace U.S. Workers. The department must make every attempt to find US workers before hiring an H-1B worker. We must also attest that we have not laid off or displaced a U.S. worker and replaced that position with a foreign worker.