Who needs to obtain the H-1B visa?
Employers should apply for the H-1B non-immigrant visa for non-residents who will be working as fashion models of distinguished merit or working in specialty occupations.
Can a non-resident obtain the H-1B visa for himself/herself?
The answer is no. A non-resident cannot self-petition since H-1B status requires a sponsoring U.S. employer.
What is “specialty occupation”?
“Specialty occupation” is defined as “an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
What are the determination factors reviewed by the USCIS for “specialty occupation”?
Important factors reviewed by the USCIS are:
The entry-level requirement is a bachelor’s or higher degree in a specified area;
The industry accepts the degree requirement in similar positions among comparable companies;
In the absence of industry acceptance, the employer can claim that a degree is required because the position is unique or complex;
A degree is the normal requirement for the position (the employer’s normal requirement for the position is a degree (i.e., previous position occupants held degrees or other employees filling similar positions held degrees);
The specific job duties are so complex that a degree is usually associated with the position;
Professional standing is usually involved in the level of authority and responsibility for the position.
Does the employing company’s size influence approval rate of an application?
To determine if a position qualifies as a specialty occupation, the USCIS has relied on the size of the company more and more. Small employers need to make a very strong case for specialty workers, i.e., by indicating a very influential client list or definite plans for getting this type of client.
Who is a qualified foreign worker for the purpose of H-1B?
According to the USCIS guidelines, a foreign worker is regarded as qualified to carry out services in a specified field if he/she:
Holds a U.S. bachelor’s or advanced degree from an accredited university or college, which is required for the specified occupation;
Holds a foreign degree that is determined to be equal to a U.S. bachelor’s or advanced degree, which is required for the specified occupation;
Holds an unrestricted state certification, registration, or license that authorizes him/her to be engaged immediately in the profession in the state of planned employment or to fully practice the occupation; or
Has specialized training, experience, and education that is equal to training acquired by obtaining a U.S. bachelor’s or advanced degree in the profession.
Does the non-resident need to obtain a license if a position to be filled requires a license?
Yes, immigration rules require that a non-resident be able to immediately fulfill the requirements of his/her specialized occupation by obtaining any relevant state licenses for experts in the profession. Usually, a permanent license should be acquired in professions that require licensing so that a person can qualify for H-1B status. In some cases, a state will allow an expert to practice with a temporary license which will be recognized by USCIS.
What is Labor Condition Application (LCA)?
The employer must file a Labor Condition Application (LCA) with the DOL which must make several required verifications before an application may be filed with USCIS to meet eligibility for the non-resident as being engaged in a specialized occupation for H-1B purposes. After certification by the Department of Labor, the employer will request approval from the U.S. Citizenship and Immigration Services (USCIS) to hire a non-resident under H-1B status.
What should an employer do before filing an LCA (Labor Condition Application)?
The two things an employer should do before filing an LCA are:
First, the employer should complete preliminary actions before filing a petition with the DOL. It should decide the prevailing wage for the job by using one of the following:
Request that a National Prevailing Wage and Helpdesk Center (NPWHC) decision of prevailing wage be made (on or after January 1, 2010);
Using a rate from a collective bargaining agreement;
Using a decision for the profession and area supplied by the Davis-Bacon Act (DBA);
Using a decision for the profession and area supplied by the McNamara- O’Hara Service Contract Act (SCA);
Using a survey administered by an impartial reliable source; or
Using another genuine source of material including the OFLC Online Data Center.
DOL rules affirm that “the employer is not required to use any specific methodology to determine the prevailing wage”. The rules further state that if a collective bargaining agreement exists between the employer and a union that contains a salary rate for the profession, then that rate must be the prevailing wage.
The employer must also notify U.S. workers of the plan to hire a non-resident by advertising the completed LCA Form ETA 9035E for the job. The job posting should occur within the 30-day period before the date that the labor condition application is submitted to the DOL. Posting may happen in either of two ways: electronic notice or hard copy. The hard copy notice should be given to the bargaining representative for workers in the profession or, if there is not a bargaining representative, be posted for 10 successive days in at least two visible areas at each work place where any E-3, H-1B1, or H-1B non-resident will be employed. Circulation should be by any way the employer usually corresponds with its employees including electronic postings (i.e., home web page, email, and bulletin board). A copy of the LCA should also be given to each non-resident worker according to that LCA.
How long is a prevailing wage decision valid?
A prevailing wage decision will be in effect between ninety days and one year after being issued by the National Prevailing Wage and Helpdesk Center (NPWHC). The employer should file its LCA within the effective timeframe stated on the form. The employer can request a redetermination by presenting additional evidence, for example, a different wage resource. The employer can also dispute the prevailing wage decision by requesting a review by the NPWHC director.
Can a prevailing wage decision be reviewed?
The answer is yes, a review (redetermination) of a PWD can be requested by an employer within 10 days of the issue date. A review by BALCA of the NPWHC’s decision can be requested within thirty calendar days of the decision date.
Can an employer ignore the prevailing wage decision and use another method of deciding wages?
The answer is yes. Under DOL policy, the employer can completely ignore the NPWHC decision and use another method of determining the prevailing wage.
What are the limitations of an “independent authoritative source”?
The DOL rules define an “independent authoritative source” as a “professional, business, trade, educational, or governmental association, organization, or other similar entity” that has an accepted expertise in a professional area.
Use of independent sources must follow the conditions stated in the LCA rules and the November 2009 prevailing wage guidance. During an investigation, the employer needs to justify using one of the other wage sources by using these conditions.
Is there a poster requirement for LCA (Labor Condition Application)?
The answer is no, a poster is not required for LCA.
Is there a notice requirement for LCA?
The answer is yes, a notice is required for LCA. The employer should notify U.S. workers of the plan to hire a non-resident by advertising the filing of the LCA to the bargaining representative if applicable, or, if there is not a bargaining representative, the employer should post a notice for 10 successive days in at least two visible areas at each work place or should provide electronic notice. The job posting should occur within the 30-day period before the labor condition application is submitted to the DOL.
How can U.S. workers be given notice?
Notification can happen in either of two ways: electronic notice or hard copy. A hard copy notice should be sent to the bargaining representative for employees in the profession or, when there is not a bargaining representative, the notice should be posted for 10 successive days in a minimum of two visible areas at each work place where the non-resident will be employed. Circulation should be by any way the employer usually corresponds with its employees including electronic postings (i.e., home web page, email, and bulletin board).
What form should an employer file to obtain an H-1B visa and what attestations must an employer make in LCA (Labor Condition Application)?
To gain H-1B status approval, the employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor. The employer must affirm that it will:
Provide H-1B workers with working conditions that will not negatively affect the working conditions of others equally employed;
Pay the non-resident workers the highest wage of either the current prevailing wage or the employer’s actual salary; in certain instances pay for non-productive time; and offer the same benefits as those offered for U.S. workers;
An H-1B worker will not be employed at a location where a lockout or strike or lockout in the professional category is occurring, and will notify ETA of any future lockout or strike; and
Within 30 days of the filing date of the LCA with ETA, provide notification of the employer’s intention to hire H-1B workers. The employer should submit notification to the bargaining representative of workers in the profession in which the H-1B worker will be employed. If there is not a bargaining representative, the employer must post the notice in visible areas at each work place or by providing electronic notice.
How should I file an LCA?
LCAs should be submitted electronically via the Department’s iCERT Portal System. The iCERT Portal System is available at: http://iCERT.doleta.gov. Lack of internet access and physical disability are the only two exceptions for filing electronically.
Employers who choose to submit LCAs via the iCERT Portal System can expect a reply within seven working days, unless noticeable errors are listed.
How long is an H-1B certification in effect? And how long can a non-resident be in H-1B status?
The H-1B certification is in effect for up to three years for the employment period specified on the Labor Condition Application (LCA), specifically Form ETA 9035E.
A non-resident can be in H-1B status for an uninterrupted timeframe of six years unless USCIS gives an extension. After the expiration of an H-1B, the non-resident must wait for one year outside the U.S. before receiving approval for another H-1B application. Specific non-residents with immigrant visa applications or labor certification petitions in process for an extended time may remain in H-1B status longer than the six-year time limit, in one-year increments.
What is the number of new H-1B visas granted each year?
The quota of new H-1B visas that will be granted every year is limited. H-1B visas are limited to 65,000 for a fiscal year; an extra 20,000 are accessible to persons who earned a master’s degree or advanced degree from a U.S. college of higher learning.
What is the “local prevailing wage” of the LCA (Labor Condition Application)?
The employer should pay the employee the current prevailing wage for the profession in the field of expertise, or at least an equal wage paid to other workers with comparable qualifications and experience, whichever one is higher. The prevailing wage is defined as “the average rate of wages paid to workers similarly employed in the area of intended employment”. “Similarly employed” is defined as workers having significantly similar jobs in the professional category in the field of planned employment.
Can my spouse and children join me if I obtain an H1-B visa?
The answer is yes. A spouse or unmarried child of a person with H-1B visa status can get an H-4 visa. Persons with H-4 visa status cannot work in the U.S., but can go to school.
What is “actual wage” of the first attestation in LCA?
The employer must pay the employee the current prevailing wage for the profession in the field of expertise, or at least an equal wage rate as paid to other employees with comparable qualifications and experience, whichever one is higher. The actual wage rate is the wage paid to other persons “with similar experience and qualifications for the specific employment in question”. The DOL (U.S. Department of Labor) rules stipulate the aspects for deciding what signifies “similar experience and qualifications”: qualifications, job function and responsibility, experience, specialized knowledge, and “other legitimate business factors” such as receipt of international prizes or professional distinctions.
What added rules apply to employers who are willful violators of H-1B rules or who are dependent on H-1B workers? And which employers are dependent on H-1B workers?
An H-1B dependent employer is, usually, one in which H-1B workers make up 15 percent or greater of the total labor force. Different levels apply for small employers. H-1B dependent employers wanting to hire only H-1B workers who have at least a master’s degree in a relevant field or who are paid a minimum of $60,000 per year can be exempt from these added rules.
H-1B willful violator employers and dependent employers should prove the following three elements pertaining to recruitment and transfer of U.S. workers:
Before applying for H-1B status, the employer of any non-resident under an H-1B LCA, took legitimate steps to hire U.S. workers for the position in which the non-resident is wanted, at wages equal or greater than the wages offered the H-1B worker. The job will be offered to U.S. workers who apply and are similarly or better qualified than a H-1B worker. This does not apply to a H-1B “priority worker”;
An H-1B worker will not be assigned by the employer under LCA at the site of a different employer unless a legitimate inquiry is made first to see if the other employer transferred or plans to transfer a similar U.S. worker within 90 days of the H-1B placement; and
The employer will not transfer any comparably employed U.S. worker within 90 days before or after applying for H-1B status or an extension of status for any H-1B worker.
Who else is subject to the specific rules?
The American Recovery and Reinvestment Act of 2009 requires all federal fund recipients under Chapter 13 of the Federal Reserve Act or the Troubled Asset Relief Program of the Emergency Economic Stabilization Act of 2008 who intend to hire H-1B workers to provide the necessary proof of an H-1B dependent employer that is listed above.
What are the employer’s responsibilities in H-1B program?
Every employer seeking an E-3, H-1B1, or H-1B non-resident has several duties:
The employer should submit a completed Labor Condition Application (LCA) on Form ETA 9035E or Form ETA 9035 (if special permission is granted) as required by the guidelines. By finishing and signing the LCA, the employer agrees to provide proof about an employer’s duties, including the working conditions and salary and benefits provided to both U.S. workers and non-resident workers.
Until USCIS approves the worker authorization to work in the U.S. for that employer or, for a non-resident who is already in H-1B status and is changing to another employer, until the new employer files an application supported by a certified LCA, the employer will not allow the non-resident worker to begin work.
The employer can send a copy of the approved LCA to U.S. Citizenship and Immigration Services (USCIS) with a completed application (USCIS Form I-129) requesting H-1B1 or H-1B classification. For the E-3 visa, employers may not need to send an application to USCIS. Instead, non-residents: (1) may apply directly to a U.S. consulate for approval; (2) may pay a visa fee; and (3) are issued a I-94 entry/exit document at their port of entry which will serve as their work approval.
The employer will make the LCA and essential supporting evidence accessible for public inspection at the employer’s main office and/or employment in the U.S. within one working day after the LCA filing date with ETA.
In case the LCA statement or evidence is challenged, the employer should maintain evidence to support the strength of the documents made in its LCA and the correctness of evidence provided. The employer should also maintain this evidence at its main office in the U.S. and should make this evidence accessible to DOL for review and copying upon request.
How does a U.S. employer establish eligibility for an H-1B petition?
The H-1B guidelines currently require that a U.S. employer prove that it has employer-employee relations with the beneficiary, as evidenced by the fact that it can fire, pay, supervise, hire or otherwise adjust the work of the employee. In addition to proving that a effective employer-employee connection will exist between the applicant and the beneficiary, the applicant should continue to fulfill all of the conditions for an H-1B application including:
File a Labor Condition Application (LCA) exclusive to each place where the beneficiary will work;
Demonstrate that the beneficiary is trained to work in the specific profession; and
Establish that the beneficiary is coming to the U.S. temporarily to work in a specific profession.
What aspects does USCIS consider when evaluating the employer-employee relationship?
USCIS will assess whether the applicant has the “right to control” the beneficiary’s work, such as where, how, and when the beneficiary performs the job. Aspects to be considered include the applicant’s right to pay, fire, and hire the beneficiary; the manner and extent to which the applicant actually supervises the beneficiary; and the petitioner’s right to direct the beneficiary’s daily work and work product. Adjudicators will evaluate the entire set of the conditions when deciding whether the employer-employee connection exists.
What type of proof can an employer provide to show that I have an effective employer-employee connection with the beneficiary?
Applicants will need to provide detailed evidence of the employment association. In cases in which the beneficiary will be assigned to third-party (client) worksites, employers will need to carefully document that it, and not the client, will have the right to direct, review, and supervise the non-resident’s work and terminate his or her employment. The employer will also need to attach a detailed itinerary providing information on multiple work locations.
What if an employer cannot present the proof listed in the letter?
The papers listed in the letter are only examples of proof that establish the applicant’s right to direct the beneficiary’s employment. Unless a letter is required by the guidelines, i.e. an itinerary, an applicant can provide similar documents. An applicant can present a blend of any documents that suitably establish that the required relationship between the applicant and the beneficiary exists. An applicant should describe how the evidence being provided establishes the relationship. Adjudicators will examine and weigh all the evidence submitted to decide if a qualifying employer-employee relationship exists.
In the H-1B program, what are employee’s rights?
The H-1B workers are allowed the following:
The employer should offer the worker fringe benefits the same as its other employees.
The employer should pay the worker at least the same salary as other workers with comparable qualifications and skill or the current prevailing wage for the profession in the field, depending on which is higher.
The employee should not be required to pay a penalty for leaving the job before an agreed upon date. This restriction does not keep the employer from pursuing “liquidated damages” according to state law. Liquidated damages are estimated damages to the employer because of the worker’s breach of contract.
The employer should pay for non-productive time caused by the worker’s lack of a license or permit or by the employer.
The employer should give the worker a copy of the LCA.
What if I get fired before expiration of my H1-B visa?
The choices for H-1B workers who lose their jobs are that they should either return to their home country, change immigration status, or find another employer to apply on their behalf.
My employer has started the permanent residence process and I am in H-1B visa status. Will I have any problems traveling internationally or renewing my H-1B visa?
The answer is usually no. An H-1B non-resident can be the beneficiary of an immigrant visa application, adjustment of status application, a labor certification application, or progress toward Lawful Permanent Resident status without affecting H-1B status. U.S. immigration law allows dual intent in H-1B cases. Dual intent means that a non-resident can stay in H-1B status, even if the person expects to become a permanent resident. While the petition for permanent residency is pending, you can work in H-1B status and continue to travel.
What is the H-1B application filing fee?
The fee is $325 for the application. Additional fees may apply in certain cases.