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.
- Working conditions: The employer must attest that employing the Canadian citizen will not adversely affect the working conditions of other similarly employed workers.
- Strikes, lockouts, and work stoppages: The U.S. employer must inform the Department of Labor of any strikes, lockouts and work stoppages.
- Notice regarding the LCA: Employers must make the Labor Condition Application available and accessible to its employees through posting the LCA on the premises for at least ten business days in two different conspicuous locations at the place of employment.
- Public access file: The employer must maintain a public access file, which is to be made available for public inspection. The file must contain documentation showing that the employer is complying with the aforementioned requirements.
- Displacement of U.S. workers: An H-1B dependent employer must attest that they are not displacing any U.S. worker in a similar position by hiring an H-1B worker.
- Payment of return trip abroad: If the employment ends before expiration of the H-1B visa, the employer must inform the USCIS of the termination and offer to pay for the return trip to Canada.
Employer obligation under L-1 visas and TN visas
U.S. employers have no specific obligations to Canadians employed on a TN or L-1 visa beyond those generally existing under employment and labor laws. Nor is there a prevailing wage or reporting requirement when a TN or L-1 visa beneficiary is terminated.
Employer obligation under O-1 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-1 visa. In most cases, the employer must obtain consultation from a union or peer group.