Immigration law allows employers to employ foreign workers on a temporary basis in a specialty occupation. A specialty occupation is defined as one that requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty (e.g., engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties, etc.).
The law is designed to protect US workers (US Citizens/Nationals, Green Card Holders, Asylees, etc.) and therefore contains a number of requirements to ensure that US workers have an opportunity to apply for the position.
What are the requirements to file an H-1B Petition for an employee?
In order to employ a foreign worker on an H-1B basis, the position itself must require a minimum of a bachelor’s degree for entry into the profession in the United States. US Citizenship and Immigration Services (CIS) normally determines whether a degree is required for entry into the profession by consulting the US Department of Labor’s Occupational Outlook Handbook (http://www.bls.gov/oco/). If this US Department of Labor publication indicates that a degree in a specific field is normally required for entry into the profession,then the position will likely be deemed to be a specialty occupation. Otherwise, it most likely will not.
Because a degree is required, the foreign worker must also have a minimum of a Bachelor’s degree or its equivalent in the field.
Both of these requirements must be met. The position cannot qualify for an H-1B visa simply because the foreign worker has a minimum of a Bachelor’s degree. The position itself must require a minimum of a Bachelor’s degree.
The H-1B regulations require (at 20 CFR 655.734(a)(1)) that notice of the position be given to the collective bargaining representative for the union having jurisdiction over the position, or, if no such union exists, that notice of the position be given by the employer by posting the position in at least two conspicuous locations for a total of 10 business days or that it be posted electronically for 10 business days or emailed to the employer’s other employees (including employees at the work site, if not on the employer’s premises).
This notice must state that nonimmigrant H-1B workers are sought, and must include the number of workers sought, the occupational classification, the wages offered, the period of employment, the location(s) of employment, and that the Labor Condition Application is available for inspection at either the employers principal place of business or the worksite. The notice must also include the statement that “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”
The H-1B regulations require (at 20 CFR 655.731) that the employer pay the greater of either the actual wage rate or the prevailing wage. The actual wage rate is the rate the employer pays others in the same or similar position.The prevailing wage is 1) the wage determined by either the Davis Bacon Act or the McNamara-O’Hara Service Contract Act, 2) the wage determined by a union contract negotiated at arms-length between a union and the employer, or 3) the weighted average rate of wages paid to similarly employed individuals in the area of employment as determined by a reliable survey.
Are there other requirements?
Payment of Filing Fees
There are three components to the filing fees for an H-1B petition:
- The basic filing for the I-129
- The so-called “Training Fee,” which must be paid for the first two petitions filed by an employer for the same employee.
- The so-called “Fraud Fee” that must be paid with the initial petition filed by an employer for the employee
The law explicitly requires that the employer pay both the“Training Fee” and the “Fraud Fee.”Although not explicitly required, the employer should also pay for the basic filing fee, and for the visa fees for consular processing, as the Department of Labor holds that those fees are for the benefit of the employer. If “Premium Processing” is used, those fees should be paid by the employer, if the Premium Processing is for the benefit of the employer, i.e. the employer needs the employee ASAP. If the“Premium Processing” is for the benefit of the employee, the employee can pay for those fees. i.e. The employee is going on vacation and needs the approval to renew her/his visa.
Additionally, the employer should pay the attorney fees for the case, if payment of those fees would reduce the employee’s salary below the required wage.
The law requires that if the foreign worker is dismissed prior to the expiration of the H-1B status, the employer must pay the reasonable cost of transportation for the foreign worker back to his/her country of origin.
Public Access File
There is also a requirement that the employer keep a“Public Access File,” which must be available for inspection by any member of the public, and by the government. This file (which contains 1) a notice that the company is seeking to hire an H-1B worker, 2) the terms of remuneration, 3) the source of source of the prevailing wage, and 4) the Labor Condition Application certified by the US Department of Labor) should be kept separate from the foreign worker’s employment file.
How long can I employ an H-1B worker for?
The law provides that a foreign worker cannot hold H -1B status for more than six consecutive years (if the foreign worker holds L-1 status, the time in that status is also counted toward the six year maximum).
The CIS normally grants H-1B status is three-year increments.The company would therefore be able to employ the foreign worker for a period of three years. A new application would then need to be filed to extend the H-1B status for an additional three-year period.
There is one exception to the six year maximum. That exception applies if the employer has filed a Labor Certification (a petition for the green card) for the foreign worker, and that application has been pending for at least one year. In that case, H-1B renewal would need to be filed on a yearly basis after the sixth year, and continuing until the foreign worker is granted the green card.
How soon can I employ the foreign worker?
If the foreign worker is currently on H-1B status, you can begin employment as soon as the petition for H-1B status has been filed. Otherwise, you must wait until the date shown in the approval of the H-1B visa.
How do I I-9 the foreign worker?
An employer is required to complete form I-9 for all employees. For H-1B employees, the employer is required to verify that the employee has H-1B status and is therefore authorized to work. H-1B status can be verified two ways:
- Through an entry stamp on the passport. This stamp will show that the foreign worker was admitted in H-1B status and will show the expiration date of that status.
- Through an I-94. The I-94 is an Immigration form that is usually stapled to the foreign worker’s passport. It is either a white card, or a greenish (with undulating diagonal lines) computer printed form. The I-94 will show the status, H-1B, and the dates that status is valid.
You are required to complete the I-9 upon hiring/approval of the first H-1B, and to reverify the validity of the work authorization when the previously authorized period expires.