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.

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:

• 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.

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.

• 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,
    • 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.

Processing Time

On average, the processing of a H-1B visa petition is taking between four to six weeks.