Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
One Practice. One Focus. One Passion: Immigration Law.

Immigration And Employment (Wage And Hour) Law

As I have mentioned in previous articles, no two areas of the law intersect more than immigration and employment law. One such intersection is in the context of H1-B visas.

Prior to filing an H-1B application on an employee's behalf, an employer certifies (promises) under penalty of perjury that it will pay an employee 100% of the level one prevailing wage for the position at issue. This certification is made under penalty of perjury. An employer's signature on the application with the Department of Labor and again on the underlying immigration forms signifies that it will not only be paying the employee what is promised on the documents, but that the employee will be working in the position in which s/he was petitioned. In other words, an H1-B accountant cannot be working as a caregiver.

All employers seeking to hire H-1B non-immigrants must be aware of and thus comply with, their contractual obligations with the Department of Labor and the Department of Homeland Security. Both Departments have increased their enforcement efforts in this area of the law as have employees. Departmental enforcement begins with formal investigation. Employee enforcement begins with the filing of a lawsuit. In any event, both can and often do prove to be quite costly for employers.

You as an employer must pay your employees what you state under penalty of perjury you will pay them. You cannot require your employees to pay your share of payroll taxes. Nor can you require your employees to reimburse you for the difference in what you are "paying" them on paper and what the wage that they are actually working for. That your employees may be complicit in your scheme does not absolve you (the employer) from potential liability. In my opinion, it makes things worse.

With new Department of Labor, Department of Homeland Security and Social Security Administration regulations, now is the time to act. If you employ foreign nationals, now is the time to get your shop in order. Review I-9's, speak to your lawyer (not your paralegal) and spend the necessary preventative dollars to avoid future lawsuits. If you are asking yourself what is an I-9, you are the perfect target for enforcement related lawsuits. And, you should be.

If you are an employee, you too should educate yourself in the same manner described above. Do not be afraid to exercise your rights. That you might be TNT does not mean that you don't have rights. You have the right to be compensated fairly, be paid time and a half for overtime when appropriate, and are permitted statutory meal and rest periods. While you may perceive your employer as having done you a "favor" by filing an H-1B petition for you in the first place, know this: if you are not being paid what is stated on the petition, it will be difficult if not impossible for you to renew your H-1B. And, this so called "favor" is nothing more than an employer's justification for paying you less than they otherwise would have to in order to employ a qualified worker. Simply put, legal violations should not be tolerated.

Legal violations in this area deprive deserving businesses of H1-B visas. Moreover, such violations deprive deserving overseas employees and their families of the opportunity to come to the United States and earn a living. Employers and employees alike should comply with U.S. immigration and employment laws. Do your part to see to it that people comply with the law.

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