H1b Sponsor Obligations

H1b Sponsor Obligations

1) What are the employer obligations when sponsoring an H1b visa petition?

The H1B visa is popularly used by physical therapists. This visa enables a beneficiary to stay in the U.S. for up to six years and apply for permanent residency in the interim. Because this visa permits a physical therapist to have "dual intent", there is no conflict when an H1B temporary worker applies for a green card. As part of the H1B petition, the employing company, serving as the petitioner of the H1B visa petition, must make a number of attestations. It is important that the employer familiarize itself with the statements it’s agreeing to so as to avoid future inadvertent noncompliance and possible penalties.

The employer agrees to the following:

The “actual” versus the “prevailing” wage: Here, the actual wage is the wage that the company’s compensation department has set for the position for all employees with similar experience and skill. Usually, the prevailing wage is a figure provided by the state’s employment agency which it thinks is an accurate reflection of what other employers are paying for that position. The employer must agree to pay the higher of the two wages.

Working conditions: The employer must state that employing the physical therapist will not adversely affect the working conditions of other similarly employed workers. Therefore, an employer who increased working hours and decreased vacation periods as a result of hiring physical therapists would not be in compliance with this attestation.

Public access file: H1B regulations require that the employer maintain a public access file which is to be made available for public inspection.

Additional requirements for H1B dependent employers. Employers are considered to be H1B dependent if they have less than 25 workers and more than 7 H1B workers; between 26 to 50 workers and more than 12 H1b workers; or more than 50 workers with 15% or more of them being H-1B physical therapists. In this case, H1B dependent employer must fulfill 2 additional requirements.

Displacement of U.S. workers: An H-1B dependent employer must attest that by hiring a H-1B worker, it is not displacing any U.S. worker for a similar position within 90 days before or after filing a H1B petition.

Recruitment efforts: The H1B dependent employer must also attest to making good faith attempts to recruit U.S. workers and offering prevailing wages for this position. When hiring an H1B worker, it is important for employers to recognize the attendant responsibilities that they must shoulder. Although the requirements are not excessively burdensome, the employer is required to maintain some paperwork to demonstrate its compliance with the law. A clear understanding and fulfillment of these requirements will minimize possible civil penalties and ensure that the employer will be permitted to petition for future H-1B workers.

PAYMENT OF EMPLOYEES
A “benched” employee, is someone who is currently between work projects, and typically refers to someone who is sponsored/employed by a consulting firm/agency who then sub-contracts their services out to an 'end' client.

In the eyes of the law, the company who petitioned the USCIS to grant the H1B Visa is considered the 'employer'....the company that 'sponsors' the employees Visa.

1) When a physical therapist is benched because there is no immediate work available, they are still entitled to receive compensation.

2)The employer is bound to pay the physical therapist as attested on the labor condition application. The employer may NOT withhold payment claiming that the employee is not entitled to it because the employee did not work.

3)Should the employer fail to pay the H1B employee, the employer will be in violation of 'federal regulations' and will have to pay any monies owed in salary.
Also, the employer risks incurring possible penalties for failure to comply with the employer requirements of H1B visa sponsorship.

4) When an H1B employee takes time off from working for personal reasons (e.g. vacation / illness / leave of absence etc), generally, the employer does NOT have to compensate the employee for this temporary period of time.
However, the employer will have to provide compensation if it was contractually agreed OR if they 'normally' do and normally make this available to its employees.

5) Employers are also bound to pay their H1B employees even when the employer experiences a temporary shut down in its operations.
i.e. If the employer shuts down the company for a period of 10 days during the holiday season, it must continue to pay its H1B employees during this period, even if the employer is not compensating the U.S. workers.

If you have any issues regarding employer obligations... You should contact your local Department of Labor (DOL)

As discussed above, employers accept important responsibilities when choosing to sponsor a physical therapist on a H1B. Employers should be careful to be aware of the requirements imposed on them to ensure that they are in compliance. Doing so minimizes potential violations and ensures that the employer can continue participating in the H1B visa program.

Reference:

United States Citizenship and Immigration Services. www.uscis.gov

“Before contacting the USCIS, USCIS may be able to help you if you have a question about immigration procedures, or need clarification, by calling the USCIS National Customer Service Center (NCSC) at 1-800-375-5283 (TTY 1-800-767-1833). This toll-free call center has additional information and, during their specified office hours, can connect you to live assistance in English and Spanish. The NCSC will be able to answer most questions - although they cannot provide information about the status of your case over the telephone.”

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