Busy with the H-1B Season? Don’t Forget the Importance of Compliance

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By: Anita Murad

While all immigration law firms and employers are busy filing H-1B cases, it is important for employers to stay on top of their compliance. Here are a few important compliance activities that all H-1B employers must follow:

Activity Description
 1 LCA Posting requirements at worksites The LCA must be  displayed for 10 calendar days at 2 conspicious places at the worksite. It can be displayed on a bulletin board/break room or any other common area visible to all employees. LCA Postings or display of LCA  must be done while the LCA is in pending status “in process” and must continue to be displayed for 10 calendar days even if the LCA is certified.It is recommended to post the LCA within 24 hours of filing it with Department of Labor.
 2 Public Access Files – maintain in the U.S. office Must be created within 1  working day of LCA filing. Can be maintained electronically or in hard copy & readily available for inspection.
3 LCA Wages All H1-Bs must be paid the higher of prevailing wage OR actual wage, whichever is higher.
4 Secondary Displacement Attestation & Direct Displacement Attestation An employer is considered an H1-B dependant employer IF 15% or more of its’ U.S. workforce is on H1-B.  An H-1B dependant employer must obtain an attestation of non-displacement of a U.S. worker in a similar occupation and in the area of intended employment 90 days before and 90 days after placement of an H-1B worker at the client’s worksite. This is known as the Secondary Displacement Attestation. A Direct Displacement Attestation is when an H-1B employee is placed at the employer’s own worksite. In case of direct attestation,  the employer must attest that there is no displacement of U.S. workers 90 days before or 90 dayas after filing of the H1-B petition.  In both instances, the  employer must conduct recruitment of U.S. workers and demonstrate that proper recruitment was conducted in the occupation which the H-1B position is being sought. There are also exemptions to both the Direct and Secondary displacement attestation. Please contact your immigration attorney to discuss this important regulation and how it may impact your company.

 

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