Picking Up The Costs with H-1Bs

By W. Scott Railton – Posted on

We are in H-1B season!  Employers and H-1B aspirants are looking into options and evaluating costs. Generally, the employer should pick up the costs of the petition.

Here’s why.

Below I’ve excerpted the “Employer Labor Condition Statements” from the Department of Labor’s ETA-9035 Labor Condition Application Form. Every H-1B application must have a certified labor condition application, and employers must make the attestations pasted below.

First, and foremost, the employer must commit to the government and to the foreign worker that they will pay the “required wage,” which is at least the prevailing wage or the employer’s actual wage, whichever is higher.

The employer must commit to paying for “non-productive time.”

The employer must also offer benefits on the same basis as offered to U.S. workers.

And…the employer shall not make deductions to recoup a business expense(s) of the employer including attorney fees and other costs connected to the performance of H-1B, H-1B1, or E-3 program functions which are required to be performed by the employer. This includes expenses related to the preparation and filing of this LCA and related visa petition information. 20 CFR 655.731.

The other statements concern working conditions, strikes and work stoppages, and employee notice requirements.

There are penalties for violating these statements, including the possibility of backpay orders, compensation, and limitations on the ability to file further applications.

Here’s the ETA-9035 Labor Conditon Application excerpt:

Employer Labor Condition Statements

In order for your application to be processed, you MUST read Section G of the Form ETA-9035CP – General Instructions for the 9035 & 9035E under the heading “Employer Labor Condition Statements” and agree to all four (4) labor condition statements summarized below:

  1. Wages: The employer shall pay nonimmigrant workers at least the prevailing wage or the employer’s actual wage, whichever is higher, and pay for non-productive time. The employer shall offer nonimmigrant workers benefits and eligibility for benefits provided as compensation for services on the same basis as the employer offers to U.S. workers. The employer shall not make deductions to recoup a business expense(s) of the employer including attorney fees and other costs connected to the performance of H-1B, H-1B1, or E-3 program functions which are required to be performed by the employer. This includes expenses related to the preparation and filing of this LCA and related visa petition information. 20 CFR 655.731;
  1. Working Conditions: The employer shall provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly employed. The employer’s obligation regarding working conditions shall extend for the duration of the validity period of the certified LCA or the period during which the worker(s) working pursuant to this LCA is employed by the employer, whichever is longer. 20 CFR 655.732;
  1. Strike, Lockout, or Work Stoppage: At the time of filing this LCA, the employer is not involved in a strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification in the area(s) of intended employment. The employer will notify the Department of Labor within 3 days of the occurrence of a strike or lockout in the occupation, and in that event the LCA will not be used to support a petition filing with the U.S. Citizenship and Immigration Services (USCIS) until the DOL Employment and Training Administration (ETA) determines that the strike or lockout has ended. 20 CFR 655.733;
  1. Notice: Notice of the LCA filing was provided no more than 30 days before the filing of this LCA or will be provided on the day this LCA is filed to the bargaining representative in the occupation and area of intended employment, or if there is no bargaining representative, to workers in the occupation at the place(s) of employment either by electronic or physical posting. This notice was or will be posted for a total period of 10 days, except that if employees are provided individual direct notice by e-mail, notification need only be given once. A copy of the notice documentation will be maintained in the employer’s public access file. A copy of this LCA will be provided to each nonimmigrant worker employed pursuant to the LCA. The employer shall, no later than the date the worker(s) report to work at the place(s) of employment, provide a signed copy of the certified LCA to the worker(s) working pursuant to this LCA. 20 CFR 655.734.
  2. G.1. I have read and agree to Labor Condition Statements 1, 2, 3, and 4 above and as fully explained in Section G of the Form ETA-9035CP – General Instructions for the 9035 & 9035E and the Department’s regulations at 20 CFR 655 Subpart H.
  3. Yes
  4. No