The H-1B is a non-immigrant, temporary work based visa available for a specialty occupation. A specialty occupation is one that requires at least a bachelor’s degree in the field of the position. The H-1B is issued in three year increments for a total of six years. Extensions are available beyond the six years if a PERM application has been filed and is pending for one year or an I-140 has been approved and the priority date is backlogged.
Petitioning for an H-1B employee involves several steps. First, we prepare the Labor Condition Application (“LCA”) and supporting documentation. Second, the employer posts the LCA in two conspicuous locations and provides a copy to the H-1B employee. Third, the employer creates a Public Access File (“PAF”) and creates and maintains certain records separately. Fourth, we send the LCA to the Department of Labor for certification. Fifth, we prepare and file the H-1B petition with the US Citizenship and Immigration Services (“USCIS”), with the certified LCA and additional supporting documentation attached.
+ Steps for petitioning for an H-1B employee
- We prepare the Labor Condition Application (“LCA”) and supporting documentation.
- The employer posts the LCA in two conspicuous locations and provides a copy to the H-1B employee.
- The employer creates a Public Access File (“PAF”) and maintains certain records in a Private Access File.
- We send the LCA to the Department of Labor for certification.
- We prepare and file the H-1B petition with the US Citizenship and Immigration Services (USCIS), formerly the Immigration and Naturalization Service (INS), with the certified LCA and additional supporting documentation attached.
We will assist you in each step of this process.
+ WHEN CAN THE POTENTIAL EMPLOYEE BEGIN WORKING
The H-1B employee may not begin working for your company until either,
- the H-1B petition that your company filed in his/her behalf is approved; or
- the H-1B petition with the certified LCA has been filed with the USCIS and all of the following conditions have been met;
a. the potential employee has previously held H-1B status;
b. the potential employee has been lawfully admitted to the United States;
c. the H-1B petition has been filed before the date of expiration of the current authorized period of stay;
d. the potential employee has not worked without authorization since his/her last entry into the United States;
e. you have received the receipt notice from the USCIS showing that the H-1B petition has been properly filed.
+ THE LCA AND SUPPORTING DOCUMENTATION
The purpose of the Labor Condition Application is to meet the attestation requirements of the Department of Labor. In preparing the LCA you will also need to create a “Public Access File” for the LCA which contains the documentation in support of the attestations. The Public Access File (“PAF”) relates to the LCA, not the employee and should not contain the employee’s name. This file must be available for inspection by the public within one day of the filing of the LCA with the Department of Labor. You should therefore prepare the Public Access File before returning the LCA to us. Section III of this letter explains what is required for the PAF. We will assume that once you have signed and returned the LCA to us that you have created the file. We will file the LCA with the Department of Labor as soon as we receive it from you unless you advise us otherwise.
By filing the LCA with the DOL, the company is attesting to the following:
- That for the entire period of authorized employment, the company will pay all H-1B employee(s) who have similar experience and qualifications for the specific position set forth in the LCA at least the higher of:
a. the actual wage level paid by the company to all other individuals with similar experience and qualifications for the specific position in question; or
b. The prevailing wage level for that specific occupational classification by all employers in the geographic area of intended employment; and
- That the employer will pay the H-1B employee for nonproductive time and will offer the same benefits on the same basis as US workers.
- That for the entire period of authorized employment, the employment of the H-1B alien will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
- That, 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.
- That, on or before the date of the LCA, notice of the application was posted in two conspicuous locations in the employer's establishment or that notice was provided to the appropriate union representative and that a copy of the LCA was given to the potential H-1B worker. This notice must be given to all H-1B workers on the LCA no later than the first day of employment.
If you are considered an H-1B dependent employer and are not exempt, you will also be making the following attestations upon the signing of the LCA;
- The hiring and employment of the H-1B worker will not displace US workers in your workforce;
- US workers will not be displaced in another employer’s workforce;
- Your company will recruit US workers and hire US workers who are equally or better qualified than the H-1B nonimmigrant.
+ DETERMINING IF YOU ARE H-1B DEPENDENT
You are an H-1B dependent employer if,
- you employ 1-25 full time employees, 8 or more of whom are H-1B nonimmigrant workers;
- you employ 26-50 employees, 13 or more of whom are H-1B nonimmigrant workers;
- you employ 51 or more full time employees, 15% or more of whom are H-1B nonimmigrant workers.
There are three tests to determine whether you are H-1B dependent,
- Readily Apparent Test: If it is readily apparent from looking at your total workforce and the number of H-1B employees you employ whether you are H-1B dependent or not, you will not be required to do any additional calculations and will not be required to maintain additional records other than what is mentioned in this letter;
- Snapshot Test: If you are on the borderline in terms of whether you are H-1B dependent, and have fifty or fewer employees, the Department of Labor will allow you to take a snap shot view of your work force to determine if you are H-1B dependent. You will not be required to maintain additional records if you fall into this category. We will help you with this process if it is necessary;
- If you are on the borderline and have more than fifty employees, you will be required to do a full calculation to determine whether you have H-1B dependent. In addition, if you determine that you are not H-1B dependent, you will be required to keep records of the calculations used to determine this status.
+ ARE YOU EXEMPT FROM THE H-1B ATTESTATIONS?
Even if you are H-1B dependent, you are exempt from the additional attestation requirements if the person for whom you are filing the H-1B has at least a master’s degree or the salary for the position is $60,000 or higher.
+ THE PUBLIC ACCESS FILE
The public access file must be made available to the public within one day of filing the Labor Condition Application with the Department of Labor. You should therefore not send us the signed Labor Condition Application until you have prepared the public access file.
The PAF must contain the following:
- A copy of the LCA (Form ETA 9035 and cover sheets), with the original signature of 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;
- 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; and
- A summary of the benefits offered to US workers in the same occupational classifications as H-1B non-immigrants, a statement as to how any differentiation in benefits is made where not all employees are offered or receive the same benefits (such summary need not include proprietary information such as the costs of the benefits to the employer or the details of stock options or incentive distributions) and/or where applicable, a statement that some/all H-1B nonimmigrants are receiving “home country” benefits;
- Where the employer undergoes a change in corporate structure, a sworn statement by the responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity;
- Where the employer is H-1B dependent and indicates on the LCA that only “exempt” H-1B nonimmigrants will beemployed, a list of such “exempt” H-1B nonimmigrants;
- Where the employer is H-1B dependent and the H-1B employees are not exempt, a summary of the recruitment methods used and the time frames of the recruitment of US workers.
We will prepare the documents to comply with 1, 2, 3, 4, and 5. Once you have posted the posting notice for ten days, you will sign it and place it in the PAF. Once you have given a copy of the LCA to the employee you must then sign the form we will provide you and place it in the PAF.
+ PRIVATE ACCESS FILE
The documentation which is not required to be made available for public inspection but must be maintained and made available to the Department of Labor upon request includes:
• Payroll records showing the wage rate for all of the employer's 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. Records must include: employee’s full name, home address, occupation, rate of pay and hours worked each day if paid other than a salary.
• Data used to establish the actual wage rate for the H-1B worker. This data should document arithmetically how the employer's wage system, described in the memorandum in the public inspection file, was applied to calculate the H1B worker's rate of pay.
• Data underlying the prevailing wage determination, if applicable. The employer is only required to include a general description of the prevailing wage source and methodology in the public inspection file. The raw data underlying a wage survey should be maintained by the employer apart from the public inspection file, in cases in which a wage survey is used by the employer 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 the DOL undertakes an investigation.
• Copies of all H-1B applications and extension requests filed with the USCIS.
• Evidence that a copy of the LCA was given to the H-1B worker on or before the first day of employment.
• Documentation as to the calculations to determine H-1B non-dependency if required.
+ THE I-129 PETITION AND USCIS PROCESS
Once the LCA is certified by the Department of Labor, we will file the I-129 and H and W supplements after you have reviewed and signed them, with the USCIS service center having 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 or higher degree to enter the field. The petition must also be accompanied by evidence that the H-1B worker has the necessary credentials to fill a position involving a specialty occupation. If the worker has a foreign degree, that degree must be evaluated by a recognized degree evaluation service. If the worker is lacking the degree usually required to enter the occupation, his or her education and experience must be evaluated to determine whether his or her overall credentials are the equivalent of the usually required degree. Credentials evaluations require extensive documentation and are usually time consuming and expensive but are absolutely required in cases in which the normal university degree is lacking.
+ WHEN IS THE EMPLOYER OBLIGATED TO BEGIN PAYING THE SALARY ATTESTED TO IN THE LCA?
The employer will be obligated to begin paying the H-1B employee salary within thirty days from the date the H-1B employee enters the United States on the approved petition where the employee is outside the United States. If the non immigrant is present in the United States on the date of the approval of the H-1B petition, the employer will be obligated to begin paying the salary within sixty days from the date the employer stated in the petition as the start date or the date of approval of the H-1B, whichever is later, even if the nonimmigrant has not begun working for the employer.
+ CONTINUING OBLIGATIONS OF THE EMPLOYER
The employer has several continuing obligations once the initial approval has been received. If the H-1B worker is assigned to work sites not listed on the original LCA, additional steps must be taken. These steps include a new posting at the additional work site or the filing of a new LCA (with a new prevailing wage determination, actual wage calculation and posting), depending on whether the new work sites are within an area of employment listed on the original LCA. Any material changes in the employment described in the H-1B petition must be approved by the USCIS through the filing of an amended petition. The USCIS interprets assignment to additional work sites requiring a new LCA to be a material change requiring the filing of any amended petition.
The employer also has an obligation to produce its LCA documentation to any requester (the public inspection file) or to the DOL (all documentation). The DOL may investigate the employer's LCA based either on a complaint from an "aggrieved" 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 $1000 - $35,000 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 nonimmigrant or employment based immigrant petitions for at least one year.
The employer must retain the LCA records for one year past the last date of employment of the H-1B worker.
Finally, 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 and to inform the USCIS when employment is terminated. When there has been a bona fide termination the employer is no longer obligated to pay the salary under the LCA.
+ PREMIUM PROCESSING
An employer or employee may request premium processing of the H-1B application. If the USCIS receives such a request, it will either process the case within 15 days of receipt or return the additional processing fee. The fee for premium processing is an additional $1,225.
+ ATTORNEYS FEES AND FILING FEES
The filing fee for the I-129 is $325. In addition to that fee the USCIS also requires a fee of $1500 for companies with more than 25 employees and $750 for companies with 25 or fewer employees. There is also an additional fee of $500 for initial H-1B or change of status applications. Certain organizations are exempt form the $750 or $1500 filing fees including institutions of higher education, affiliates of such institutions, elementary and secondary schools and non profit research organizations. In addition, if this is your second request for an extension for an employee, you are filing a request to amend but not extend the employees status, or you are filing a petition to correct a service error, there is no addition fee.
Additional fees of $4500 are required if you employ more than 50 workers in the United States and more than half of your workforce is in H-1B status.
The employer is also required to pay the attorney’s fees as attorney’s fees are considered a business expense.
+ H-1B CAP
Congress has allotted a limited number of visas to the H-1B category. Each year, this limit is reached on the first day that the visas become available. As an H-1B petition can be filed no more than 180 days prior to the first date of employment, and visa numbers become available with the new fiscal year on October 1, the first day of filing is April 1 each year. Therefore, if you are filing an H-1B for an employee who is not in H status, you may have to file the petition by April 1. Even if the petition is filed by April 1, it is not guaranteed to be accepted for processing. Each year the USCIS has received more petitions than there are visas available. Therefore, the USCIS has instituted a lottery system. They will accept petitions for the first two days of filing and then subject them to a random lottery. If the case is accepted for processing it will be processed. If it is not, the USCIS will return the petition and filing fees.
The H-1B cap only applies to employees who are not currently in H status. If you would like to hire an employee who is currently in H status, you most likely do not have to file by April 1.
In addition, if you are an employer who is exempt from the cap, you do not have to file by April 1. Certain countries are also exempt from the cap.
+ SITE VISITS
By signing Part 7 of the I-129 form, the employer is authorizing the USCIS to conduct an audit of the petition. The USCIS has been conducting random visits of employers who file H-1B petitions. In 2004, USCIS created the Office of Fraud Detection and National Security (FDNS) in 2004 “in order to strengthen USCIS’s efforts to ensure immigration benefits are not granted to individuals who pose a threat to national security or public safety, or who seek to defraud our immigration system.” In 2010, FDNS was promoted to a Directorate. You will need to be prepared for a site visit once the petition is filed. We will provide you information regarding the site visit with the I-129 forms.