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H-1B compliance

I-9 Compliance

PERM – Labor Certification

H-1B Public Access Files

H-1B employers must maintain an H-1B compliance file available for public inspection within one day after the filing of the LCA with the DOL, and maintain the required records for at least one year after expiration of ETA 9035 or the date of withdrawal.

Each H-1B Employee’s Public Inspection File Must Include the Following:

• Prevailing Wage Determination printout/survey;
• Completed and signed Form ETA 9035;
• Documentation of wage to be paid;
• An explanation of the method employed in determining the “actual wage” for the position offered—the method in question must demonstrate the rate paid to all employees with experience and qualifications similar to the H-1B worker’s experience and qualifications;
• Evidence of ETA9035 posting or union notification;
• List of employment benefits offered to the H-1B worker and U.S. workers, along with a statement regarding any differences in such benefits if applicable;
• Restructuring documentation for entities that undergo a corporate change, as in a successor in interest;
• “H-1B Dependent” employers must keep all necessary additional documentary evidence resulting from their “dependent” status in the H-1B compliance file.

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I-9 Compliance

All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire in the United States. Form I-9 must be kept by the employer either for three years after the date of hire, or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials (e.g., Department of Homeland Security, Department of Labor, Office of Special Counsel).

I-9 Form and Employer Handbook

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PERM - Labor Certification

A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker on a permanent full time basis. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security's USCIS, the employer must obtain an approved labor certification from the DOL. The DOL must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment, and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Qualifying Criteria

• The employer must offer to hire the foreign worker as a full-time employee;
• The job opening must be bona fide, and available to U.S. workers;
• Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be narrowly tailored to the prospective worker's qualifications. Furthermore, the job opportunity must be offered and described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
• The employer must pay at least the prevailing wage for the occupation in the area of intended employment.

Process for Filing

• Application - The employer must complete an Application for Permanent Employment Certification. The application must detail the job duties, educational requirements, training, experience, as well as other special skills necessary for the job, and include a statement of the prospective immigrant's qualifications.
• Signature requirement - Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification issued by ETA, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.
• Prevailing wage - Prior to filing the ETA 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.
• Pre-Filing Recruitment Steps - All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
  The employer must recruit under the standards for professional occupations set forth in 20 CFR 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.
  The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity
• Audits/requests for information - Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
• Retention of records - The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification. For example, the SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer.
• Online filing - The employer has the option of filing an application electronically or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.
  The employer can access a user-friendly web site (www.plc.doleta.gov) and, after registering and establishing an account, electronically fill out and submit an Application for Permanent Employment Certification.
• Registration - To better assist employers with processing the Application for Permanent Employment Certification, the electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the Online System.
  Click here to register

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