Our firm has successfully represented clients in H-1B Specialty Occupation Visa cases, view our H-1B Specialty Occupation Visa Success Stories.
The H-1B visa allows workers in specialty occupations – areas that normally require a bachelor’s degree or higher – to work in the U.S. for up to a total of six years (and beyond if an application for a green card has been in process for at least one year). It is not necessary for an employer to demonstrate that there is a shortage of qualified American workers to sponsor an individual for an H-1B visa. It is only necessary for the employer to verify that the H-1B worker is being paid the prevailing wage for the work being performed and that employment of the H-1B worker is not harming conditions for American workers.
THE H-1B VISA PROCESS
After an offer of employment is made, the first step for an employer is to ensure that the H-1B employee will be paid at least the prevailing wage paid to similarly employed workers in the geographic area where the H-1B employee will be employed. The employer also guarantees that it will not pay the H-1B employee less than the actual wage paid to its other employees with similar qualifications.
Once the wage information has been obtained, notice is provided to American workers that the employer will be hiring an H-1B employee. Thereafter, a Form ETA 9035 Labor Condition Application (LCA) is submitted to the U.S. Department of Labor (DOL). On this form, the employer submits the wage to be paid, the prevailing wage, and makes certain attestations.
When the LCA form is returned to an employer, it is submitted to the USCIS as part of the H-1B petition package. Also included in the United States Citizenship and Immigration Services (USCIS) petition package are documentation of the H-1B employee’s qualifications, the employer’s type of business, and the type of work the H-1B employee will be performing.
To qualify for the position, the H-1B employee must have at least a U.S. Bachelor’s degree in a field relevant to the position sought or a Foreign degree that has been evaluated to be the equivalent of a U.S. Bachelor’s degree. The H-1B employee can also demonstrate through work experience or a combination of education and experience that they have the equivalent of a Bachelor’s degree. An H-1B visa is a “dual intent” visa meaning that a visa will not be denied simply because a person has declared an intent to become a permanent resident. There is limit of 85,000 H-1B visas issued per year (65,000 regular visas plus 20,000 visas for individuals with a U.S. Master’s Degree or higher). Once approved, an LCA is valid for three years and H-1B Petitions are usually approved in three year increments.
The H-1B employer must pay for the attorney’s fees and filing fees related to the preparation and submission of the Labor Condition Application and H-1B Petition.
The H-1B process involves two steps. First, the employer submits a LCA to the DOL for certification. Second, the employer files a petition with the USCIS to obtain H-1B classification for the alien. If the alien is already in the U.S. in another status, an application for change of status is filed simultaneously with the petition. If the alien is in the U.S. working in H-1B status a change of employer and/or extension of stay petition is filed. If the alien is outside the U.S., a consular interview is requested.
Filing the LCA
By filing the LCA with DOL, the employer is attesting to the following:
In addition, a copy of the LCA certified by DOL must be provided directly to the alien prior to beginning the H-1B employment.
Please note that there are additional attestations and requirements that “H-1B dependent” employers and “willful violators” must comply with. “H-1B dependent” employers are (1) companies with twenty-five or fewer full-time equivalent employees who employ seven or more H-1B workers, (2) companies with twenty-six to fifty full-time equivalent employees who employ twelve or more H-1B workers, and (3) companies with fifty-one or more full-time equivalent employees who employ H-1B workers as 15% or more of their workforce. H-1B dependent employers and willful violators are required to make additional attestations on an LCA related to “non-displacement” of U.S. workers in “essentially equivalent” jobs in the specific area of employment and related to recruitment of U.S. workers for the job(s). These additional obligations do not apply, however, to an LCA filed for the employment of “exempt” H-1B nonimmigrants, who are H-1B workers receiving wages at an annual rate of at least $60,000, or who have attained a master’s or higher degree (or its equivalent) in a specialty related to the intended employment.
If a company has onsite contract workers who are employed by an “H-1B dependent” employer, the employer of these contractors may request assurance from the company that the company has not laid off workers 90 days prior to the worker being on the company’s worksite, and the company does not intend to lay off workers within 90 days after the worker is on the worksite. Thus, layoffs at the company may affect the ability to keep contract employees of H-1B dependent employers on the worksite.
The LCA procedure is primarily complaint-driven; that is, an investigation into the accuracy of the LCA will normally occur only if a complaint is filed by an aggrieved party. If a complaint is filed, the DOL Wage and Hour Administrator will investigate the complaint. In the event of a violation of the LCA, the Administrator may (1) impose a fine per violation; (2) bar the employer from obtaining future visas for a period of at least one year; and (3) order the employer to provide for payment of back wages. Material misrepresentation on the LCA can also subject the signer to penalties for perjury including fines and incarceration. Additionally, violation of the record keeping and I-9 requirements may have their own independent fines and penalties.
Satisfying Documentation Requirements
Within one working day after filing the LCA, the employer must make the LCA and certain supporting documentation available for public examination at its principal place of business in the U.S. or at the place of employment, in what is commonly referred to as the “public access” file. This folder must be retained for one year beyond the end of the period of employment specified on the LCA. The required documentation for the public access file includes: The completed labor condition application containing the original signature and the cover pages. Documentation which provides the wage rate to be paid the H-1B worker. “A full, clear explanation of the system that the employer used to set the `actual wage’ the employer has paid or will pay workers in the occupation for which the H-1B nonimmigrant is sought, including any periodic increases which the system may provide – e.g., [any] memorandum summarizing the system or a copy of the employer’s pay system or scale.” Employers hiring H-1B workers are advised to have a clear, written pay system, with objective criteria against which all workers are measured. This provision requires that such a system be made available to the public as evidence of the employer’s compliance with “actual wage” requirements. If the employer does not have such a pay system it must create a memorandum for the public access file. A copy of the documentation the employer used to establish the “prevailing wage” for the occupation, such as the SWA determination, expert report, or survey information, which must include a “general description of the source and methodology” of the survey. A copy of documentation indicating that the employer has satisfied the notice of filing requirements, which would include the collective bargaining representative notification or postings. A summary of the benefits offered to U.S. workers in the same occupational classification as H-1B nonimmigrants, a statement as to how differentiation in benefits is made where not all employees are offered or receive the same benefits, and/or, where applicable, a statement that some or all H-1B nonimmigrants are receiving “home country” benefits. Where the employer undergoes a change in corporate structure, a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities, and undertakings under the LCAs filed by the predecessor, together with a list of each affected LCA and its date of certification, and a description of the actual wage system and Employer Identification Number (EIN) of the new entity. A list of any entities used as part of a “single employer” definition for determination of H-1B dependency status. Where the employer is H-1B dependent and/or a willful violator and files the LCA only for “exempt” H-1B nonimmigrants, a list of such persons. Where the employer is H-1B dependent and/or a willful violator and the LCA is not filed for exempt H-1B nonimmigrants, a summary of the recruitment methods used and time frames of recruitment of U.S. workers, or copies of pertinent documents showing this information.
Other categories of documentation need not be made available to the public, but must be retained to provide to an examining officer of the DOL in the event of an investigation or enforcement action. These include payroll records for the alien and any other individuals with experience and qualifications similar to those of the alien’s who are in the same position at the place of employment, individual wage data which the employer relied upon in any survey to determine the prevailing wage, and other categories of required documentation to support the employer’s compliance with LCA attestations. The employer must maintain the payroll records for a period of three years from the date of the creation of the records.
C. The H-1B Petition
The LCA is filed over the internet. Once the LCA is certified the USCIS Petition may be filed. The USCIS filing fee for the petition is $460. Additionally, non-exempt employers with more than 25 full-time employees must pay an additional $1500 which will go to a “training fund” for U.S. workers. The training fund fee for non-exempt employers with 25 or less full-time employees is $750. Employers exempt from the training fund fee are institutions of higher education, primary or secondary education institutions, nonprofit entities related to an institution of higher education, nonprofit research organizations, nonprofit entities engaging in an established curriculum-related clinical training, and governmental research organizations. Also exempt from the training fund fees are second or subsequent requests for extensions of stay filed by the same employer and amended petitions not containing a request for an extension of stay or to correct a USCIS error.
Furthermore, all employers filing an initial petition for H-1B Classification or hiring an alien seeking to change to a new employer must pay a $500 Fraud Prevention and Detection Fee. There are no exceptions to this fee other than for petitions to amend or extend a beneficiary’s H-1B status with the same employer.
For an additional $1410 the USCIS will decide the petition in 15 days or less. The petition will consist of the Form I-129, a company letter of support outlining the proposed position duties and requirements, and supporting documentation including information about the company.
H-1B nonimmigrant visa classification has two major requirements: (1) that the position to be filled is a “specialty occupation,” i.e., an occupation requiring the theoretical and practical application of a highly specialized body of knowledge, and for which attainment of a U.S. bachelor’s degree or higher is a minimum requirement for entry into the occupation; and (2) that the alien possesses a U.S. bachelor’s degree or higher in the specialized field. (Note that if the individual does not have a degree, or possesses a foreign degree, an education and/or experience evaluation will be required to determine the equivalence to a U.S. degree.)
If the petition is requesting a change of employer for an individual already in H-1B classification, the employee may begin working for the new employer upon filing of the new employer’s H petition if the employee has previously held H status, was lawfully admitted into the U.S., has not worked without authorization since last entry, and the petition is filed before expiration of the employee’s authorized stay. When the petition involves an extension of employment with the same employer, the employee is authorized to continue working for a period of 240 days pending a decision on the extension petition.
For petitions requesting a change of status from another nonimmigrant classification, an employer may begin to employ the alien in H-1B classification once the petition is approved. If the alien is outside the U.S., he or she will need to obtain an H-1B visa stamp at a U.S. embassy or consular post abroad in order to enter the United States. Similarly, if the alien is in the U.S. but then travels internationally, he or she will likely need to obtain an H-1B visa stamp prior to reentering the United States.
Under current regulations, in the event the employer dismisses the alien from employment before the end of the period of authorized admission, the employer is expected to accept liability for the reasonable costs of return transportation to his or her residence abroad.
The LCA, H-1B petition, and prevailing wage information are valid for three years.
The total limit of stay for an alien in H-1B status is 6 years. However, if a “green card” application process is started more than 365 days prior to the expiration of the 6 year period, H-1B status can be extended beyond 6 years in 1 year increments while the “green card” application process is pending.