H1B employer liability

Return to Main Employer Issues page

A precondition to filing an H1B petition is the submission of a sworn labor condition application (LCA) by the sponsoring employer. The employer must attest to present and future compliance with the terms and conditions of the LCA, including:

Paying the employee the higher of the prevailing wage or the wage paid to similarly qualified employees at the same location, doing the same work;
Providing the employee with a copy of the certified LCA prior to the first day of employment;
No placing the employee in unpaid nonproductive status ("benching");
Providing the employee with the same benefits as similar company workers;
Providing the employee with return transportation to his or her home country if the employee is terminated before the end of the approved petition validity period;
Complying with all posting and record retention requirements; and,
Notifying the immigration service immediately when the employee no longer works for the company.

Failure to comply with any of these requirements will subject the employer to fines and other sanctions, up to and including debarment from the H1B program. If an employer underpays an employee, the employee may complain to the Department of Labor. If the DOL finds that the complaint has merit, they will order the employer to pay the employee the difference, plus interest. They will also fine the employer.