The highly sought after H1B visa permits foreign skilled workers to work and reside in the U.S. under a lawful status for up to six years. The H1-B visa allows for a foreign national to have “dual intent.” This means that during the initial six year period, foreign workers are allowed to apply for permanent resident status (green card status) via the adjustment of status (AOS) process. This article will outline and elaborate upon the various requirements that H1B sponsoring employers must adhere to when sponsoring an H1B applicant.
The Role of the Employer
The H1B process involves a “petitioner” and an “applicant.” The employing company will serve as the “petitioner” for the H1B worker or, “applicant.” The employer/petitioner is required to satisfy several criteria in addition to making certain attestations. Because of this, it is highly recommended for employers who are interested in sponsoring a foreign worker for an H1B to work with experienced legal counsel when submitting the petition. A licensed and qualified immigration attorney will help employers to understand their requirements and to avoid and potential noncompliance issues (including inadvertent actions) which have the potential to be met with penalties from USCIS.
Labor Condition Application
An important part of the H1B application process is the submission of a Labor Condition Application (LCA). The LCA is submitted to the Department of Labor (DOL) via Form ETA 9035. The LCA contains several items that the sponsoring employer must attest to. These are summarized in the following sections.
Actual vs. Prevailing Wage
There is sometimes confusion in regards to the difference between “actual wage” and “prevailing wage.” The actual wage is what the company has allocated for compensation for any and all employees with similar skills and experience as the H1B applicant. The prevailing wage is determined by the state’s employment agency or DOL, and will designate what the state believes to be an accurate representation of what other employers are paying individuals with the same position as the H1B applicant in a certain geographic area.
Working Conditions
Employers who are sponsoring a foreign worker for an H1B visa must attest that the employment of the foreign national will not adversely/negatively affect the working conditions of other employed workers in a similar position. If the hiring of the foreign worker does indeed negatively impact other, similar workers, then the employer would not be in compliance.
Strikes, Lockouts, and Work Stoppages
If a strike, lockout, or other work stoppage develops after the initial filing of the LCA with DOL, then the petitioning employer is required to notify the Department of Labor.
Notice of the LCA
Petitioning employers are required to notify its employees of the LCA by posting the LCA on the company’s actual premises. The duration of the posting is ten business days at a minimum. Additionally, the posting of the LCA must be done in two separate, clearly visible locations.
Availability of Public Access File
Federal H1B guidelines state that the petitioning employer must keep a public access file which is available for public inspection. This public access file must demonstrate that the petitioning employer is in compliance with the previously mentioned requirements.
Requirements for “H1B Dependent” Employers
Certain employers are classified as being “H1B dependent.” Organizations of different sizes are assessed differently. Please see below how employers are classified as being H1B dependent based upon size of workforce:
- Companies with less than 25 employees are considered H1B dependent if they have more than seven H1B workers.
- Companies with 26 – 50 employees are considered to be H1B dependent if they have more than twelve H1B workers.
- Companies with more than 50 employees are considered to be H1B dependent if 15% or more of its workforce are H1B workers.
Displacement of U.S. Workers
Employers are required to attest that the hiring of an H1B worker will not in fact displace any U.S. worker for a same or similar position within 90 days before AND after filing the H1B petition.
Recruiting
An employer who is interested in sponsoring an H1B worker must also demonstrate an attempt to also recruit US workers while offering the prevailing wage for the position in question. These attempts are sometimes referred to as “good faith” attempts. Employers should remember that this component of the application process does require them to maintain some form of record in order to demonstrate compliance. Employers are encouraged to work with a legal professional to ensure that the records being kept will indeed hold up under scrutiny.
Compensation of H1B Employees
A commonly term used to describe H1B workers is a “benched” employee. This term refers to workers who are in between assignments/projects and more often than not, refers to an employee who is sponsored by a consulting firm who then sub-contracts the worker’s services to a client (usually referred to as an “end client”). USCIS will view the company that originally petitioned the H1B worker as the employer. Companies that sub-contract H1B workers must keep certain guidelines in mind:
- If a foreign worker is “benched”, even if it is due to a lack of available work, the H1B worker is still entitled to receive compensation as outlined in the original LCA.
- The employer is bound by law to compensate the foreign worker as outlined in the original LCA and cannot withhold payment by stating that the foreign worker should not receive payment because they did not perform any work/service.
- Employers who do fail to pay an employee who is maintaining H1B status will be in violation of federal guidelines/regulations and will be required to pay the full outstanding amount to the employee.
- Should the H1B employee require time off due to certain personal reasons, the employer is generally not required to compensate the foreign worker for this temporary period of time. This being said, the employer is responsible for compensation if they are contractually obligated to do so or; typically provide payment for this type of leave to other employees.
- Should the sponsoring employer undergo a temporary shutdown/halt in operations, they are still required to compensate the H1B employee. The H1B employee should also receive compensation if operations are halted during a period of ten days due to holidays.
H1B Visa Laws That Can Affect Hiring Decisions
Employers interested in utilizing the efforts of a foreign worker should be aware of certain federal laws that could impact hiring decisions. A brief summation of these is provided below:
H1B Visa Cap
The H1B cap refers to the finite number of H1B visas that are awarded annually. Currently, the annual quota is set at 65,000 with an additional 20,000 for the Advanced Degree Cap or more commonly referred to, “Master’s Cap.” The additional 20,000 are reserved for professionals who have obtained a U.S. master’s degree (or its foreign equivalent), or higher. As there are additional guidelines for the Master’s cap and potential H1B employers should consult with an immigration attorney in order to determine if the candidate qualifies for this.
H1B Cap Exempt Employees
Certain professionals are considered to be “cap exempt.” This can include professionals employed for nonprofit research, universities and government institutions. A legal immigration professional can help employers to determine if a candidate qualifies as being cap exempt. For additional information on hiring cap exempt employers, review our article, Hiring H1B Cap Exempt Candidates.
Portability
Due to H1B regulations, H1B workers who wish to work for another employer may only do so once certain criteria have been satisfied. A worker may not begin working for a different employer until the H1B transfer petition has officially been filed. H1B workers may begin and continue to work for their new employer while their transfer petition is being processed. As there are additional requirements for H1B transfer petitions, it is recommended for employers and H1B workers to consult with an immigration lawyer prior to taking any action.
H1B Visa Extensions
Workers who are maintaining H1B status are allowed to apply for a one-year or three-year extension once they have exhausted their six-year maximum. In order to be eligible for this, they will have to satisfy the following guidelines:
- Must have filed either a I-140 application OR an I-485 Adjustment of Status (AOS) application And;
- at least one year must have passed since the LCA PERM or the I-140 was filed
This is useful information as it allows H1B workers to remain in the U.S. under a lawful status and to continue working while they continue to seek their potential permanent resident status (also known as green card status).
KPPB Provides Professional H1B Assistance
If you are a sponsoring employer or a foreign worker who needs assistance with any aspect of the H1B visa filing process, contact KPPB law today. Our experienced immigration attorneys have managed thousands of H1B cases and are able to provide assistance with any H1B related issue. Call our offices or contact KPPB Law online to schedule a consultation to discuss your needs.
Beeraj Patel, Esq.
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