REQUIREMENTS FOR AN H-1B SPECIALTY WORKER VISA
H-1B specialty worker visas are the most common temporary work permits available to professionals. They are obtained routinely by U.S. corporations and other organizations that require foreign professional workers.
A U.S. employer can file an H-1B specialty worker petition with the United States Citizenship and Immigration Services (USCIS) on behalf of a foreign employee, provided that the job requires at least a Bachelor’s degree in a particular field and the foreign national employee possesses that degree or the equivalent.
Eligible fields of endeavor include, but are not limited to, most computer science jobs, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and other positions that require a degree of a combination of education and experience in a field related to the job’s duties.
The potential H-1B worker must either have a university degree, or a combination of education and experience equal to a degree in a field related to the offered job. Three years of progressive experience in an occupational specialty often is deemed equivalent to one year of university studies. H-1B status usually is granted for an initial period of up to three years; however, extensions can be obtained for up to a total of six years and sometimes more.
An employer can request an H-1B visa for less than three years, and H-1B employment may be part-time. An individual requesting part-time H-1B status must be able to demonstrate that employment remains his/her primary purpose for being in the U.S. An H-1B authorizes a foreign worker to be employed only by the petitioning employer under the terms of the H-1B petition, and a foreign worker maintains lawful status by employment pursuant to the terms of the H-1B petition.
An H-1B worker may hold more than one H-1B visa to work for multiple employers simultaneously. Significantly, there are a limited number of H-1B visas available each fiscal year, which begins October 1, and some employers and foreign nationals are exempt from this annual quota. Employers must offer an H-1B employee the same salary and benefits packages normally offered US workers in similar positions.
An H-1B-sponsoring employer is obligated to pay H-1B employees at least the prevailing rate of pay for that position in the area of the work site. Employers are also obligated to keep records to establish they are paying the employee the required wage and are otherwise complying with the terms and conditions of the H-1B program.
The time it takes to obtain an approved H-1B varies greatly, depending upon the processing time of the various government agencies involved. The process should be initiated as early as possible, however an application may be filed with the government no more than six months in advance.
If the foreign national is outside the United States or holds another non-immigrant status other than H-1B, he/she cannot begin working for the petitioning employer until the H-1B petition filed with CIS is approved and the individual holds H-1B status. Individuals who already hold H-1B status for another employer may be able to start work for the new employer upon the filing of the petition with CIS. Although routine H-1B processing takes months, CIS premium processing results in a decision within 15 days for a supplemental $1000 filing fee. Other costs associated with an H-1B petition include a standard $320 filing fee, a $500 “antifraud” fee, and – for certain employers – a fee of $750 or $1500 (depending on the employer’s size) to train U.S. workers.
LIMITATIONS ON THE NUMBER OF NEW H-1B VISAS AVAILABLE EACH YEAR
There is an annual limit of 65,000 new H-1B petitions per year. Since the fiscal year ends September 30, employers currently preparing H-1B petitions cannot file them until April 1 and the visas will not be available until October 1st. Fortunately, there are several types of employers and individuals that are not subject to the annual cap.
Employees of colleges and universities – and their related or affiliated nonprofit entities, nonprofit research organizations, and government research organizations are exempt from this cap. Individuals not subject to the annual cap are those presently in H-1B status, those who previously held H-1B status within the past 6 years and have not left the U.S. for more than one year after attaining such status, and physicians who held J-1 status and received a waiver of the 2-year home residence requirement pursuant to the Conrad Waiver Program.
Moreover, there is a permanent exemption from the annual cap for 20,000 individuals who have received a Master’s or higher degree from a U.S. college or university.
THE H-1B PROCESS
The H-1B application procedure is a three to four step process, depending upon the foreign
- Collecting all the information and documents needed for the petition
- Filing of a Labor Condition Application with the Department of Labor
- Filing of a Petition for Nonimmigrant Worker with USCIS
- Obtaining an H-1B visa stamp from a U.S. Consulate abroad, if the individual is outside the U.S. or has violated the terms of their current status.
BASIC INFORMATION REQUIRED FOR H-1B PETITION
Information Needed From the Employer
The basic information required from an employer for an H-1B petition includes:
- Date the employer’s company or organization was established.
- The employer’s IRS employer ID number.
- The total number of employees at the employer’s place of business.
- The employer’s net and gross annual income, or, if a non-profit organization, the employer’s annual budget.
- The specialty worker’s job title and a detailed description of the proposed job duties.
- The specialty worker’s salary.
- The approximate value per week and a description of the benefits (i.e., health insurance) the specialty worker will receive.
- The name and title of the person who will sign the required forms on behalf of the employer.
- Information about the petitioner and the types of services it provides (i.e., a company brochure or other literature, if available).
The company must be able to demonstrate the ability to pay the salary offered to the H-1B employee. Therefore, companies with fewer than 100 employees or newly formed companies may be required to show extensive documentation to establish this. In these cases, tax returns and quarterly payroll filings are the best evidence, although alternative evidence often is acceptable.
INFORMATION NEEDED FROM THE EMPLOYEE
- Required documentation from the prospective H-1B worker includes the following:
- Legible copies of all college, university diplomas or other higher education documents. Copies do not need to be certified for authenticity. Copies may be faxed to us initially but hard copies must be sent by mail. Degrees should be sent to us first and immediately because we must have some foreign degrees evaluated for their U.S. equivalency before an H-1B petition can be filed.
- Copies of transcripts from colleges, universities, or other institutions of higher learning should be sent to us as soon as they are available because sometimes they are necessary and on other occasions they are useful.
- The prospective H-1B worker’s curriculum vitae or resume.
- Copies of the prospective H-1B worker’s current passport, I-94 Arrival/Departure card (if in the U.S.), and any U.S. immigration documents. If the spouse and/or children will accompany this individual in H-4 status, copies of their current passports and I-94 Arrival/Departure cards are also required. Please note that those in H-4 status are not permitted to work.
- If already working in the U.S., copies of most recent paystubs from the current employer to evidence maintenance of status.
- A prospective H-1B worker may be ineligible for a visa if any of the following has ever occurred to them:
- Arrested anywhere for any reason.
- Refused a U.S. visa.
- Refused entry into the U.S.
- Lied to get a U.S. visa.
- Violated U.S. immigration law.
- Treated for alcoholism or a mental disorder.
- Involved with illegal drugs.
- Accrued at least 180 days of unlawful presence in the U.S.
PREPARATION OF AND FILING THE LABOR CONDITION APPLICATION WITH THE DEPARTMENT OF LABOR
The Labor Condition Application (LCA) requirement associated with the filing of an H-1B visa petition involves the employer’s determination of the actual wage paid to similarly employed workers, obtaining prevailing wage information from the Department of Labor (DOL) or another “authoritative source”, and the filing of the LCA with the DOL regional office.
DETERMINING THE REQUIRED WAGE
The employer must pay the H-1B employee at least 100% of the prevailing wage or the actual wage, whichever is higher.
The prevailing wage is defined by the Department of Labor (DOL) as being the wage paid to workers in a specific job category within a specific geographic region based upon a DOL determination or another “authoritative source” (e.g., a geographic specific salary survey published within the past two years).
Benefits may not be included in determining whether the prevailing wage is being offered to the H-1B employee; however, employers must offer the same benefits, including stock options, to H-1B employees as they offer to similar U.S. workers. There are special prevailing wage rules for colleges, universities, and non-profit research institutions.
The actual wage is the salary paid by the employer to other employees “with similar experience and qualifications for the specific employment in question.” Once the employer defines the “specific employment in question” in terms of job duties and requirements, it must then differentiate among these individuals to determine which employees are “similarly employed” based upon the following factors:
- experience (length, type, etc.);
- qualifications (particular skills, etc.);
- education (what level is required);
- job responsibility and function;
- specialized knowledge; and,
- other legitimate business factors. Note that this may NOT include an employee’s willingness to accept a lower salary, parity within the company, or qualifications irrelevant to the position.
If such similarly employed workers are paid different salaries, the employer must indicate whichfactors were used to make such salary distinctions.DOL requires that the employer complete and retain an actual wage memorandum in a publicinspection file, along with other LCA materials (described below).
This memorandum must include the occupational title, education, experience level, and an explanation of other relevant factors which affect the wage rate of similarly employed workers.
PAYMENT OF USCIS FILING FEES AND ATTORNEY’S FEES
The Department of Labor takes the position that fees associated with obtaining an H-1B visa are an employer’s business expense and should not be borne by the foreign national. Therefore care must be taken if the payment of these fees by the foreign employee may bring his/her pay belowthe required rate of pay. Kindly remember the employer is required to pay the higher of the actual or the prevailing rate of pay.
DETERMINING THE EMPLOYER’S DEPENDENCE ON H-1B WORKERS.
All employers must determine whether or not they are an “H-1B dependent employer” as defined by the law. H-1B dependent employers are those whose workforce is comprised of a significant number of H-1B workers. Please refer to the following chart to determine H-1B dependency:
# Full-Time Equivalent Employees
# of those employees that hold H-1B status
1 to 25
8 or more
26 – 50
13 or more
51 or more
15 % or more of the workforce
Employers who are H-1B dependent, or those who have willfully violated the terms and conditions of a previously filed Labor Condition Application, face additional attestation requirements. Ultimately, they can also expect a greater level of scrutiny on the petitions and applications they file, and perhaps a greater likelihood of being audited by the DOL.
In addition to attesting that the employee will be compensated appropriately as described above, the LCA affirms that:
- The employee is eligible to participate in the same benefits programs as similarly employed U.S. workers,
- the employment of the H-1B worker will not adversely affect the working conditions of other similarly employed workers,
- there is no strike, lockout, or work stoppage affecting employees in the occupation at the work site, and
- a notice of the LCA filing has been provided to other workers at the location. H-1B dependent employers and willful violators of the H-1B program have three additional
- They have not and will not lay off U.S. workers in the same occupational classification as the H-1B employee for the 90-day period preceding and the 90-day period following the filing of the LCA.
- They will not send the H-1B worker to work at another employer’s work site if that second employer has laid off U.S. workers in that occupation.
- Penalties, including back pay, may be imposed in the event an employer makes a misrepresentation of fact on an LCA.
The LCA notice requirement may be accomplished by posting a copy of the LCA in two conspicuous locations at the work site for ten consecutive business days. In the event that the occupation is unionized, a copy of the LCA must be given to the appropriate bargaining representative.
THE POSTING OF THE LABOR CONDITION APPLICATION
The Labor Condition Application or a notice of filing of the LCA must be posted in two conspicuous places in the location or locations where the services are to be performed, so that U.S. workers may know that the employer intends to file an H-1B petition on behalf of a specialty worker.
The LCA does not contain the prospective H-1B employee’s name, but does indicate the position and rate of pay offered. Penalties, including back pay, are imposed in the event the employer makes a misrepresentation of fact on an LCA. We will provide the potential H-1B employee with a copy of the LCA as required.
Employers also have the posting options of posting the notice on their website for ten days or sending a one-time email to employees in the same or similar job classification as the H-1B worker’s position. Copies of these emails and/or postings must be kept in the public inspection file described below.
In the event that the occupation is unionized, notice should be accomplished instead by giving a copy of the LCA or written summary to the appropriate bargaining representative.
As part of the LCA process, employers are required to document that they have complied with the attestations listed on the LCA. Although none of this documentation needs to be submitted to the DOL with the LCA, some of it must be available for public inspection while the rest must be maintained for review in the event of a DOL investigation.
Separation of these records will avoid a confidentiality breach and an unnecessary disclosure of compensation data. Moreover, this documentation should be kept separate from other employment records. Within a day of filing the LCA, the public inspection documentation must be made available atthe employer’s principal place of business in the United States or at the location where the H-1B worker will be employed.
Any person or group, whether or not “aggrieved” by the employer’s conduct, may request to see the H-1B public inspection file. The file must be made available to the requester within one business day of the request. The employer must maintain these records for at least one year after the end of the period of employment indicated on the LCA or, if a timely complaint is filed, until the complaint is resolved.
ASSEMBLING AND RETAINING THE REQUIRED DOCUMENTATION TO SHOW COMPLIANCE WITH THE REQUIREMENTS OF THE LABOR CONDITION APPLICATION
The documentation which must be maintained for public inspection includes:
- a copy of the LCA (Form ETA 9035), signed by the employer’s representative;
- a statement of the current rate of pay for each H-1B worker admitted under the LCA;
- a copy of the prevailing wage determination for each area of employment;
- a memorandum explaining how the employer calculated the actual wage for the job, without identification of the H-1B worker or the other workers similarly employed to the H-1B worker for purposes of determining the actual wage;
- evidence of (1) notification to the bargaining representative or (2) posting of notice of the LCA filing, including the dates and locations of the posting;
- evidence that a copy of the LCA was given to the H-1B worker on or before the first day of employment;
- Summary of eligibility criteria for participation in benefits plans; and
- Statement/Calculation of employer’s H-1B dependency.
The documentation which is not required to be made available for public inspection, but which must be provided in the event of a DOL investigation, includes:
- payroll records showing the wage rate for all of the employees in the same job at the place of employment. This documentation is not limited to employees with experience and qualifications similar to the H-1B worker, although the H-1B worker only needs to be compared to this latter group of employees for purposes of determining the actual wage rate.
- Payroll records for each part-time H-1B indicating the number of hours worked each day and each week, even if the employee is salaried;
- data underlying the prevailing wage determination (i.e. DOL determination or other “authoritative source”). The raw data underlying a wage survey should be maintained by the employer in cases in which a wage survey is used as a prevailing wage source.
- documentation on working conditions. The employer may be required to produce evidence that the H-1B worker is receiving working conditions equivalent to U.S. workers if DOL undertakes an investigation.
The employer also has an obligation to produce its LCA documentation to any requester (the public inspection file) or to DOL (all documentation). DOL may investigate the employer’s LCA based either on a complaint from any party or on its own initiative.
A DOL finding that the employer has violated the LCA requirements, such as through “willful” failure to pay the required wage rate or “substantial” failure to post a notice of the LCA filing, could result in penalties including a $1,000.00 fine per violation, payment of back wages, and debarment from filing LCAs or permanent labor certifications, or obtaining approval of H, L, O, and P non-immigrant or employment-based immigrant petitions for at least one year.
Obviously, the care we take in preparing the LCA and this document is intended to eliminate the risk of misrepresentation and the imposition of any of these penalties. Although it is worth noting that there have been few enforcement actions by DOL, employers should study this document and take the necessary steps to ensure H-1B compliance.
THE FILING OF A LABOR CONDITION APPLICATION WITH THE DEPARTMENT OF LABOR
The LCA must be submitted to the DOL prior to submitting the H-1B petition to USCIS. The LCA must also be certified by the DOL.
FINAL PREPARATION OF AND FILING THE H-1B PETITION WITH USCIS
Upon approval of the LCA by the Department of Labor, the H-1B petition is filed on Form I-129 with the USCIS Service Center with jurisdiction over the work site. The USCIS petition must be accompanied by documentation that the job to be filled by the H-1B worker involves a “specialty occupation,” one requiring a Bachelor’s degree or higher degree to enter the field.
OBTAINING APPROVAL OF THE H-1B PETITION
The USCIS requires anywhere from three to sixteen weeks to adjudicate an H-1B petition. Processing times vary in different jurisdictions. H-1B petitions by employers in the Northeast usually are processed the fastest, while cases filed for Southern and West Coast employers often take longer to be decided by the CIS.
Approval of an initial H-1B petition may be given for up to three years, and extensions of stay may be granted to a maximum period of stay of six years. Only after the petition is approved may the H-1B worker take the approval notice to a U.S. Consulate to obtain an H-1B visa to enter the United States. If the petition has indicated that the H-1B worker is already in the United States in valid status and is filing for a change of status, the worker may commence employment for the employer once the H-1B petition is approved.
Persons who have violated the terms of their current immigration status and persons outside the United States must secure their initial H-1B visa at the U.S. Consulate in their home country. In limited instances, some H-1B workers may apply for their initial H-1B visa stamp at a U.S. Consulate in Canada or Mexico. Significantly, persons who apply for an H-1B visa at a U.S. Consulate need not show that they do not wish to immigrate to the United States or that they have sufficient ties to their home country to compel their return abroad. In most cases, an H-1B visa stamp will be issued by a U.S. Consul following USCIS approval of the petition.
ADDITIONAL EMPLOYER OBLIGATIONS
It is also important to note that any changes in wages, working conditions, job location, characteristics of the employment position, or the H-1B employee’s change of position or employer may necessitate the filing of a new LCA and H-1B petition or a new LCA and an amendment to an existing H-1B petition.
If the H-1B worker is assigned to work sites not listed on the original LCA, the employer must (1) post the LCA at the additional work site if it is in the same DOL region or (2) file a new LCA (based on the above procedures) with the appropriate DOL regional office. Material changes in the employment described in the H-1B petition must be approved by the CIS through the filing of an amended petition. For example, assignment to additional work sites requiring a new LCA is a material change requiring the filing of an amended petition.
Likewise, changes in the corporate structure or ownership of the company or any labor disputes may affect both the LCA and the H-1B petition and should be brought to our attention immediately.
Employers are obligated to pay the employee at the rate of pay and for the hours listed on the forms filed with the government. This applies even to situations where the employee is not working if the nonproductive status that was not initiated at the request of the employee. In other words, if the employee is not working because the employer doesn’t have enough work, or the employee is waiting for a license or the employer has temporarily suspended the employee.
This provision does not apply when the employee initiates the time away from work (i.e., vacation, maternity leave, touring the US, medical emergency or other unpaid leave, etc.)
The H-1B petition states that the employer has an obligation to pay the costs of return transportation for any H-1B worker whose period of employment is terminated prior to the expiration date of the worker’s status. The USCIS expects the employer to meet this obligation, although USCIS regulations contain no enforcement mechanism.
PENALTIES FOR NON-COMPLIANCE
A DOL finding that the employer has violated the LCA requirements, such as through “willful” failure to pay the required wage rate or “substantial” failure to post a notice of the LCA filing, could result in penalties including a $1,000 fine per violation, payment of back wages, and debarment from filing LCA’s or permanent labor certifications, or obtaining approval of H, L, O, and P nonimmigrant or employment-based immigrant petitions for at least one year. Obviously, the care taken in adhering to these requirements will lessen the risk of imposition of any of these penalties.
In employment-based immigration cases, the attorney represents both the petitioning employer and the employee-beneficiary. In fact, in this type of case, immigration documents can only be submitted to the government by a petitioning employer on behalf of an employee-beneficiary.
Therefore, the attorney must be authorized by the employer to file papers on the employer’s behalf that , if approved, will enable the employee-beneficiary to receive a visa. Attorneys are permitted to represent two parties simultaneously, if so authorized, unless their interest conflicts.
Representing two parties simultaneously in one matter also requires an attorney to be equally loyal to both parties. Under those rare occasions when a conflict of interest develops between a petitioning employer and the employee-beneficiary, the attorney cannot take sides regardless of which party pays the attorney fees, and, the attorney must withdraw from representing both parties unless one party consents to the attorney’s continued representation of the other party.
If you, or your business needs assistance with securing an H-1B Specialty Worker Visa, please contact Gordon Law Group PC at (415) 284-1601.