H-1B Cap season is approaching, and, with a similar flurry to file petitions for eligible specialized knowledge workers expected for April 1 as we experienced in 2015, H-1B employers should carefully consider the obligations of employee sponsorship imposed by the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS). Among the required employer attestations included with the Labor Condition Application, which must be filed with the DOL and certified before the employer can file an H-1B petition, the H-1B employer attests that it has read and agreed to the following statements:

Form ETA 9035 Part H:

1. Wages: Pay nonimmigrants at least the local prevailing wage or the employer’s actual wage, whichever is higher, and pay for nonproductive time. Offer nonimmigrants benefits on the same basis as offered to U.S. workers.
2. Working Conditions: Provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly employed.
3. Strike, Lockout, or Work Stoppage: There is no strike, lockout or work stoppage in the named occupation at the place of employment.
4. Notice: Notice to union or to workers has been or will be provided in the named occupation at the place of employment. A copy of this form will be provided to each nonimmigrant worker employed pursuant to the application.

These attestations formed the underlying basis for racketeering suits filed by two former Disney employees against Walt Disney World and two outside consulting firms, HCL Technologies Ltd. and Cognizant Technology Solutions. These proposed class actions allege abuse of the H-1B program including conspiring with the consulting companies to replace technology staff with foreign workers. Specifically, plaintiffs allege that the defendants were required to certify the provision of conditions that would not adversely affect similarly situated U.S. employees (item 2 in the list above) and violated this obligation.

The litigation is in its early stages, and plaintiffs face a difficult task of proving racketeering conspiracy claims and that violations rose to the level of fraud. Regardless of the outcome, these cases provide a cautionary reminder to employers to carefully review their practices to ensure compliance with H-1B requirements. An employer’s internal review should extend to any vendors providing foreign workers to the employer site, as in the case with the consulting companies named in the lawsuits.

As we all gear up to prepare for the new H-1B filings at the end of March, now is the time to make sure any existing H-1B sponsorship remains compliant and to discuss any concerns or questions with a qualified immigration attorney.

For more information on an employer’s obligations and record-keeping requirements connected with the Labor Condition Application and, in turn, the H-1B petition, please review the instructions for the Labor Condition Application (Form ETA 9035).