H1-B Overview Summary – What Companies Need to Know
This article provides a summary explanation and overview of the basics to obtain H-1B status. There are many specifics and details that are not appropriate for this general article, but in the current tight labor market this information will prove very helpful to companies contemplating hiring a foreign national.
The H-1B visa is offered for a temporary need to hire a foreign national to perform work in a “specialty occupation.” The status can be for up to three years, renewable for another three years, and in some cases longer. Note the amount of time may be reduced when the employee previously had an H1B and so has used up some of that time already. “Specialty occupation” is defined as an occupation that requires theoretical and practical application of a body of highly specialized knowledge. That language has come to be interpreted as requiring attainment of a bachelor’s or higher degree as a minimum requirement to perform the job duties. A certain number of H-1B petitions are available for each U.S. government fiscal year (October 1 through September 30).
The Labor Condition Application (LCA):
A labor condition application (LCA) must be filed with the U.S. Department of Labor (DOL). It should be certified by the DOL within 7 days of receipt. The employer must comply with certain requirements including providing notice of the LCA filing.
The LCA is attestation-based, meaning that the employer makes certain promises to the government—in this case the Department of Labor. The employer is not required to submit but is required to keep supporting documentation on file to be available for “public examination.” INA §§212(n)(1) and (t)(2)(A). The statute states only that the contents of the public file must include the LCA and “such accompanying documents as are necessary.” The Department of Labor’s (DOL) regulation, discussed in detail throughout this chapter, fills in the details on what such documents it regards as “necessary.” This file is often referred to as the public access file (see below).
By signing the LCA or filing it electronically, the employer affirms that the H-1B worker will be paid the “required wage rate” for the occupation. This required wage is the higher of either the prevailing wage for the occupation in the geographic area of intended employment or the actual wage paid by that employer to similar employees in the same occupation. In keeping with the employer’s existing obligation to provide the required wage rate and comparable working conditions, the employer must also provide H-1B workers with equivalent benefits packages received by U.S. workers.
Determining the prevailing wage from government-provided wage data may require a detailed analysis of the position. The government data may not contain a position by the same name as the employer uses, and it will be necessary to analyze the exact job duties to determine the best fit. For example, the best translation of “Director of Technological Services,” the employer’s job title, may be “Computer and Information Systems Managers” in the government’s system of classification. Or, a “Senior Consultant” may best be equated to a “Management Analyst.” Again, analysis of the exact job duties is necessary to determine the best fit.
In addition to attesting that the required wage rate will be paid, the LCA also contains promises from the employer that:
- It will provide working conditions for the nonimmigrant that will not adversely affect working conditions of workers similarly employed;
- There is not a strike or lockout in the occupational field at the place of employment; and
- It has provided notice of the filing of the LCA to the applicable union representative, or if there is no such representative, has provided notice of the filing through posting in the workplace or electronic notification to employees in the occupational classification.
If the employer is considered H-1B dependent (generally at least 15% of that employer’s workforce consists of H-1B workers), or As defined in INA §212(n)(3). is a “willful violator,” As defined in 20 CFR §655.736(f). or is a recipient of TARP Funding under title I of the Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, or §13 of the Federal Reserve Act. funding and is hiring a new employee under H-1B status, Section 1611 of the American Recovery and Reinvestment Act of 2009. additional attestations are required in the H-1B context:
The H-1B1 and E-3 LCA provisions, while nearly identical to the H-1B provisions in many respects, do not contain special provisions for “dependent” employers or for “willful violators.”
- The employer did not and will not displace a U.S. worker within a period 90 days before and 90 days after the filing of the H-1B petition.
- The H-1B nonimmigrant will not be placed at a third party worksite where there are indicia of employment by the other employer, unless the employer petitioning for the H-1B worker has inquired whether there has been or will be a displacement of a U.S. worker at the third party site during those 90-day periods and has no knowledge of such a displacement.\
- The employer has taken good faith steps to recruit U.S. workers for the position and has offered the job to any U.S. worker who applied and is at least as qualified as the H-1B
In addition, the employer must develop sufficient documentation to establish the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged. The employer shall also maintain such documentation at its principal place of business in the United States and shall make such documentation available to DOL for inspection and copying upon request.
This attestation-based LCA for H-1B purposes is not to be confused with the labor certification for permanent residence (“green card”) that requires specific recruitment steps and evidence of job applications received.
Public Inspection File:
Although employers are not required to submit evidence to the government with the LCA, they are required to document that they have complied with the attestations on the LCA. Some of that documentation must be available for public inspection. The remainder must be maintained for review in the event of a DOL investigation. Documentation that must be made available for public inspection should be kept in its own file and apart from the other documentation required for LCA purposes as well as from the personnel information regarding any specific H-1B worker. Keeping these records separate will avoid a confidentiality breach and an unnecessary disclosure of compensation data. After the LCA is certified by DOL, a petition may be filed with USCIS to obtain permission to hire the H-1B worker.
The Employee Must Be Admissible:
Note the prospective employee must not be subject to any ground of inadmissibility. Those grounds are numerous and include prior immigration history, criminal arrests, health-related grounds, security grounds and more.
The USCIS Petition:
The petition with supporting documentation is filed with the appropriate Service Center having jurisdiction over the petition. The supporting documentation must include evidence that the job involves a specialty occupation and evidence that the prospective H-1B worker has the credentials to fill the specialty occupation position. If the worker’s university education is from another country, or if the worker does not have a university degree, a credentials evaluation must be completed by a recognized degree evaluation service. A notable amount of specific documentation is required to be submitted as supporting evidence. What evidence will be submitted will be determined separately for each individual case.
The required government processing fees must also be submitted.
Because the government is likely to receive more petitions than there are visa numbers available, there may be a lottery to see which cases will be selected. There can be no guarantee as to the outcome of any petition. Certain employees may be exempt from the cap, and we will determine that individually.
Continuing Obligations of the Employer:
The employer has continuing obligations once the initial approval has been received. The DOL may investigate the employer’s LCA based either on a compliant from an “aggrieved” party or on its own initiative. For example, an employee may file a complaint if s/he is not paid the required rate as stated on the LCA. 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, payment of back wages, and debarment from filing LCA’s or permanent labor certifications, or obtaining approval of H, L, O, and P nonimmigrant or employment-based immigrant petitions for at least one year.
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, unless the worker applies for other lawful status.
Upon engaging with Peterson Russell Kelly PLLC, we will analyze the job duties, job title, employee’s eligibility, and the salary. If you and we agree to go forward with an H-1B petition, we will assist you in the preparation of the LCA, USCIS petition, and supporting documentation. Contact us to help you determine whether an H-1B specialty worker may be the right choice for your company or organization.
*This article contains general information. It does not constitute legal advice or instruction for any particular matter. Neither does it create an attorney/client relationship.