Non-Immigrant Visas

Employer obligations under H-1B visas

U.S. employers are obligated to offer a full-time or part-time position in a specialty occupation. More importantly, the employer must pay the employee the actual wage for that position or the prevailing wage as determined by the Department of Labor, whichever is higher.

What does 'prevailing wage' mean?

The Immigration and Nationality Act (INA) requires that any hiring of non-U.S. citizen employees will not adversely affect the wages and working conditions of U.S. workers that are employed in comparable positions. Thus, any wages offered to a foreign employee must be the higher of the actual wage or the prevailing wage rate for the occupational classification in that particular area of employment. The prevailing wage rate is defined as "the average wage paid to similarly employed workers in a specific occupation in the area of intended employment."

Example: A Los Angeles-based ABC accounting firm wants to hire a Canadian citizen as a CPA with less than one year of experience. The firm must determine what the prevailing wage rate is for that profession, experience level and location. Assuming that the rate is determined to be $45,000.00 per year, the firm must pay the employee at least this amount in order for the H-1B to be approved. However, if ABC's actual wage for a 1st year accountant is $50,000.00, then the Canadian citizen must be paid $50,000.00.

Other obligations

Employer obligation under L visas and TN visas

U.S. employers have no specific obligations to Canadians employed on a TN or L visa beyond those generally existing under employment and labor laws. Nor is there a prevailing wage or reporting requirement when a TN or L visa beneficiary is terminated.

Employer obligation under O visas

The sponsoring employer or agent must file a petition within the U.S. at the appropriate regional service center of the USCIS. The employer must also provide sufficient documentation to prove that the Canadian citizen is qualified for an O visa. In most cases, the employer must obtain consultation from a union or peer group.

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