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| Employement Visa |
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| The H-1B visa is temporary employment visa allowing the alien to work in the United States for a specified employer. This visas given to qualified individuals in a "Specialty Occupation". It is usually given for a period of up to three years at a time (maximum), and the alien cannot exceed six years maximum on H-1B status. Accordingly, the H-1B visa allows employers to hire qualified foreign individuals, including foreign students studying in the United States. Similarly, foreign students studying in the United States can adjust their status from F-1 to H-1B while in the United States. There are three steps to receiving a H-1B visa. Firstly, the employer must file a Labor Condition Application (LCA) with the Department of Labor in the region the alien will work. The employer must show that the salary the alien will be paid is not lower than the prevailing wage for the occupation, thus ensuring that American workers are not undermined. Our General Information letter explaining the LCA process is found at the end of this section. Secondly, upon approval of the LCA from the Department of Labor, petitions filed with the Immigration and Naturalization Service for the approval of the H-1B petition. Once this is approved, the approval is forwarded to the requested U.S. Consulate abroad. Thirdly, the alien if outside the country is interviewed at the Consulate and if accepted, granted a visa. If the alien is in the United States in a legal status (such as B1/B2, L1, L2, H-4 and Student/F-1), their status is adjusted within the United States. In order for us to process a H-1B visa petition, the employer and employee must complete the attached questionnaire, found at the end of this section following our General Information Letter. |
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| Requirements |
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- EMPLOYER
An American company must file a petition with the
Immigration and Naturalization Service to sponsor a foreign national to
work in a "specialty occupation". The petitions filed by the employer,
not the prospective employee. This petition is made on Form I-129 and H-Supplement accompanied by the certified LCA and supporting documentation along with USCIS government filing fees. Your legal assistant will help you to determine the correct fees.
- SPECIALITY OCCUPATION
In order to be eligible for H-1B status,
the position has to be one, which requires specialized knowledge. This
is most often evidenced by the requirement that the individual have the
equivalent of a U.S. bachelor's degree in the field of the
occupation.For most foreign degrees, an educational credential
evaluation is highly advisable.
- PROCESSING TIME
On average, the processing of a H-1B visa
petition is taking between four to six weeks.
- ACCOMPANYING FAMILY (H-4 Visa)
Accompanying family members
(spouse and children) will be issued a H-4 visa. The family requires a
valid passport(s) and proof of relationship with the principle
applicant. Should the family not be applying for their visa at the
consulate at the same time as the student or not be adjusting status
from within the United States, they will also require a copy of the
principle applicant's approvedH-1 visa, his I-94 card and a recent
letter from the employer of the H-1beneficiary indicating that he is
currently employed with the company per the terms of the H-1 visa.
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| Information |
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| This memorandum will explain the basic procedures to obtain H -1B work authorization. Since the Immigration Act of 1990, the H -1B petition process requires two basic steps. First, the employer must apply to the Department of Labor for certification of a Labor Condition Application. Certification is usually received in approximately one week. Once this certification is obtained, the petition for H -1B classification is filed with the Immigration and Naturalization Service, where processing normally takes one to two months. It should also be remembered that if the alien were outside the United States, he or she would need to apply to a U.S. consular post abroad for an H 1 visa. If the alien is already in the U.S., such application will generally be necessary the first time he or she leaves the country. |
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| The newer immigration law is called the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). Its enabling regulations, from the Department of Labor (DOL), were published as a proposed draft in 1999, but are not yet finalized. This new law requires more of those employers which it calls H-1B dependent. Here is the governments current definition of an H-1B dependent employer: |
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- One who employs 8 or more H-1B employees out of a total workforce of
1-25 full-time equivalent employees, or
- One who employs 13 or more H-1B employees out of a total workforce
of 26 to 50 full-time equivalent employees, or
- One who employs 15% or more H-1B employees out of a total workforce
of 51 or more full-time equivalent employees.
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| But note that H-1B workers whose wages equal at least $60,000 per year, or who have attained a Masters degree in a specialty field related to their occupation, are not considered to count as H-1B employees for purposes of calculating whether you are an H-1B dependent employer. That $60,000 may include cash bonuses and similar compensation, if payment is assured, cash in hand, within that year for which the employer wants it to Acount, according to the 1999 proposed DOL regulations. |
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- Preparing the Labor Condition Application: Wage
Determination
It is necessary to file a Labor Condition
Application (referred to hereinafter as an "LCA") with the Department of
Labor before an H -1B petition is filed with INS. One of the main pieces
of information on the LCA is the wage, which the company proposes to
pay. The law requires that this wage be either the "actual wage" for the
particular occupation at the place of employment, or within 5% of the
"prevailing wage" for the occupation in the general geographical area -
whichever of the two is higher. An employer may, if he chooses, pay more
than the actual or the prevailing wage. An employer may put a salary
range on the LCA form, but the lower end of the range must be at least
the higher of the actual and prevailing wage rates. Thus, the initial
task in preparing an LCA is to determine both the actual wage and the
prevailing wage for the position in question. The actual wage means the
wage rate paid by the employer to individuals with experience and
qualifications similar to the alien for the specific occupation in
question at that worksite. If there are such individuals at the company,
and if they are paid more than the proposed salary for the alien, it is
necessary to justify the discrepancy based on a difference in such
factors as educational attainments, years of experience, particular
skills and abilities, responsibilities and functions, seniority with the
company, etc. If there is no such basis to justify the discrepancy, then
the alien must be paid at least the same amount as the other employees
with similar experience and qualifications for the specific occupation.
To do an actual wage analysis, it is necessary to have information
concerning the other individuals who are employed by the company in the
specific positioning question. You must also be able to explain the
actual formula or methodology the company uses to calculate wages. The
prevailing wage means the average rate of wages for the specific
occupation in the geographical area of intended employment.
The quickest means of establishing the prevailing wage is
by reference to one or more independent authoritative source wage
surveys, which can be done instantly. The most reliable means is by
requesting a prevailing wage determination for the geographical area
from the state employment agency (the SESA). If the employer requests a
ASESA@ wage survey, which requires several weeks, we will be happy to do
so. Recognizing that it may be difficult to as certain the prevailing
wage with precision, the regulations provide that the salary must be
within five percent of the prevailing wage. We will work with you to
obtain the prevailing wage for the position a issue, and to determine
the actual wage.
- Employer Attestations on Labor Certification
Application
On the Labor Certification Application form itself
one puts the wage, the prevailing wage and its source, the job title,
the number of H -1B workers needed, and the period of need. Currently,
under existing law, an employer also makes the following four
attestations:
- For the entire period of authorized employment, the wage paid to
an H -1B employee will be at least the higher of the actual wage or
the prevailing wage. Every 36 months, the prevailing wage must be re
determined to ensure that the employer is continuing to pay the
prevailing wage.
- The employer will provide "working conditions" for H -1B
non-immigrants, which will not adversely affect the working conditions
of similarly, employed workers in the geographical area. The
regulations state that working conditions refer to such matters as
hours, shifts, vacation periods, and fringe benefits. In practice,
this means that such conditions should not be inferior to those
offered by other companies to persons who are similarly employed. The
employer must be able to show that all employees are offered the same
fringe benefits.
- On the date the LCA is signed and submitted there was not a
strike, lockout, or work stoppage in the course of a labor dispute in
the relevant occupation at the place of employment. If a strike occurs
after filing the LCA, you have three days to notify DOL of this
occurrence.
- A copy of the LCA must be provided to the H-1B alien. Also, on or
before the date the LCA is filed, a notice of the application must be
posted at two conspicuous locations at the work sites; or, if there is
a collective bargaining representative in the occupational
classification in which the alien is to be employed, notice must be
provided to the bargaining representative. The employer must also keep
a record of the dates and locations the notice was posted, and must
keep a copy of the notice in its files.
Under the 1999
proposed Department of Labor Regulations, if they are approved as
written, all H-1B dependent employers will be required to make two
additional attestations:
- That they have taken good faith steps to recruit U.S. workers for
the job in question. Good faith will be presumed if the employer has
advertised
- in relevant and appropriate print media,
- in higher education or other facilities publications commonly
used by the industry, and
- internally within the employers organization. This attestation
is never required for those H-1 employees whose wages will equal
$60,000 per year, or who possess a Masters degree in a specialty
related to the proposed job.
- That they will not displace, and have no intentions to displace,
U.S. workers. The employer will apparently also be expected to keep
written notes of assurances (or written contract clauses) showing that
third-party clients also will not displace any U.S. workers within 90
days before or after the H-1 employee arrives at the work site. This
attestation is never required for those H-1 employees whose wages will
equal $60,000 per year, or who possess a Masters degree in a specialty
related to the proposed job.
- Location Where Services Performed and Material Changes in Job
Title and Duties, and Decreased Hours of Employment.
Recently, issues related to immigration have received a great deal of
attention in the public media - via "60 Minutes" and Newsweek magazine,
for example. Consequently, applications for non-immigrant professionals
are receiving heightened scrutiny from the concerned agencies (INS and
Dept. of Labor) in order to eliminate fraud and abuse of the regulations
governing U.S. work authorization. One issue that is now being examined
more carefully by the agencies processing H-1 related applications is
the question of location - where will the services be performed or the
employment take place? The geographic area where the job duties will be
performed must govern the determination of prevailing wage for the
proposed employment. If the employment involves performing work in more
than one location, (whether the new work site is another establishment
of the employer, or is the worksite of another entity such as a customer
of the employer), the employer must meet the prevailing wage for the
occupation in each geographic area where the period of employment for
any H-1 worker will exceed 90 days. This may involve the submission of
actual and prevailing wage information for several employment locations,
and it also may require the filing of multiple Labor Condition
Applications, and the posting of notices at each job site. Additionally,
if an employee receives a promotion and/or there is a substantial change
in job duties, a new LCA and prevailing wage determination must be done.
Further, any H-1B non-immigrant employed under an LCA in a full-time
capacity must be guaranteed full time wages during the entire validity
period specified on the LCA, even if the H-1B non-immigrant is not
engaged in productive work for employment-related conditions such a
slack of work, training periods or other such reasons.
- Public Access Records
Within one working day of filing an
LCA, certain records must be made available to the public upon request.
These are: a copy of the LCA.
- information concerning determination of the actual and prevailing
wages; and
- a copy of the Notice which was posted at the company, together
with information as to when and where it was posted
- Maintaining LCA Documentation
In addition to the public
access documents discussed above, the company must develop and maintain
payroll records for all employees with similar qualifications and
experience in the position, throughout the period of employment. Such
records should include:
- Employees name
- Home address
- Occupation
- Rate of pay and information used to calculate the rate
- Actual salary
- Total pay period additions or deductions
- Total wages paid each pay period, the period covered, and the date
of payment.
The company must maintain this documentation for
three years from the date of the creation of the records (or, if a
complaint is filed, for as long as it takes to resolve the complaint).
This documentation must be made available for Department of Labor
examination immediately upon request. The public access file, due to the
proposed DOL regulations of 1999, will most likely also require:
- A full, clear explanation of he system used to set the actual
wage;
- Any future change in the employer=s corporate identity resulting
from either acquisition or spin-off, including an express
acknowledgment that all existing LCA obligations will continue to be
honored by the successor entity;
- A notation of whether the employer is AH-1B dependent@ or not,
along with notes recording any future changes in that condition;
- Evidence of the prevailing wage, the best evidence being a
prevailing wage determination for the geographical area from the state
employment agency, known as a SESA (in Michigan, for example, that
office is called the State of Michigan Department of Career
Development).
- Copies of H-1B petitions for the employers H-1B workers.
- Risks in Filing an LCA and H-1B Petition
The law
provides penalties for noncompliance. They include:
- Fines and penalties of between $1,000 and $35,000 for each
violation are included in the 1998 ACWIA, and are discussed at length
in the 1999 proposed Department of Labor regulations. That $35,000
penalty applies to a displacement violation combined with another
violation;
- Back wages, which may be assessed where the alien has not been
paid the higher of the actual wage or the prevailing wage;
- Being barred from having the INS approve certain petition
(including H-1B petitions) on its behalf for between one and three
years;
- Criminal penalties of up to $10,000 and/or imprisonment for up to
five years for knowing and willful submission of false statements,
including filing LCAs which misrepresent a material fact;
- Civil penalties of up to $5,000 per violation (plus all unpaid
back wages) for willful failures related to wages or working
conditions, related to the specificity of the LCA, and related to
other violations;
- Civil penalties of $1,000 against any employer who compels an
employee to pay the employer a penalty for ceasing employment with the
employer prior to a date agreed to by the employee and employer as
well as reimbursement of any such required amount;
- Any other administrative remedies found appropriate by the Wage
and Hour Division.
Investigations of possible violations will
be undertaken by the Department of Labor if a complaint is filed or,
under the ACWIA, proposed DOL regulations, upon a complaint, or upon
certification by the Secretary of Labor that there is reasonable cause
to infer the possibility of such violations and other statutory
conditions are satisfied. Allegations leading the Secretary to such a
certification must be put in writing, either by the ``source'' or by a
DOL employee on behalf of the source, ``[o]n a form developed and
provided by the Secretary. The Department is developing this form, which
like other DOL forms, will go through the normal Office of Management
and Budget clearance process. When cleared, the form will be publicly
available from Departmental offices and other sources. The 1999 DOL
regulations state that if an employer obtains the prevailing wage from,
and in good faith relies on, an independent authoritative source wage
survey, DOL will not investigate unless it receives significant evidence
that shows a prevailing wage which varies substantially from the
prevailing wage attested by the employer. In contrast, if a prevailing
wage determination is obtained from a SESA, DOL will not investigate the
accuracy of that wage determination. If the employer dismisses an H -1B
alien from employment before the end of the period requested and
authorized by the petition, then the employer is liable for the aliens
return transportation abroad. This provision is complaint-driven, and no
penalty is included in the 1999 DOL regulations. There is also no
express prohibition against an alien indemnifying the employer for this
cost. If the alien leaves voluntarily, then the employer has no return
transportation liability.
- Additional Information About the Process
Once the LCA has
been certified, it is important that you contact us if the alien does
not begin to work, prematurely leaves employment with the company, or
works reduced hours. We may consider withdrawing the certified LCA.
Otherwise, the company will continue to bind by the wage, working
condition, strike/lockout, and notice statements in the LCA. After the
LCA has been certified, we will complete and file the H -1B petition
with the INS. If the alien is inside the United States, the petition
will normally include an application for change of non-immigrant status.
If the alien is or will be outside the U.S., he or she will need to
apply for an H -1B visa at a consulate. The visa application process is
generally quite fast; most consulates issue such visas the same day or
the next day following application.
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| Processing Time |
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| On average, the processing of a H-1B visa petition is taking between four to six weeks. |
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