Written by attorney Naima M Said

A Cautionary Tale for U.S. Employers using the H1B1 Visa Program

The Labor Condition Application and Prevailing Wage Request steps in the H1B1 petition process are built-in mechanisms by the US Department of Labor to protect US workers as well as foreign workers employed under the H1B1 Visa Program brought to work in the US in specialty occupation. Employers who violate the attestations in the Labor Condition Application or the Prevailing Wage Determination are subject to penalties. It is imperative for the US Company to pay the prevailing wage at the beginning of the worker's employment. If the Labor Condition Application is for a full-time worker, the worker must be paid a full-time wage. It is a violation for a US Company to petition for a full-time worker then pay him part-time wages. If the worker will work in more than one location, indicate this in the Labor Condition Application and the Prevailing Wage Request. The law mandates that the wage must be governed by the geographic locations where the H1B1 worker will be employed. Wages for these H1B1 workers must be at least equal to the actual wages paid to the other workers with similar experience and qualifications for the same position or must be the prevailing wage for the geographical area of intended employment, whichever is greater. If your company receives a notice from the USDOL Wage and Hour Division, it is advisable to retain an attorney immediately.

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