for Prospective Employers This article describes the information, attestations and procedures required to obtain an H-1B nonimmigrant visa to allow a foreign worker to engage in temporary employment with your company or organization. GENERAL INFORMATION The H-1B visa is used for the temporary employment of a foreign worker in a specialty occupation. It requires the U.S. employer to file a petition for the services of the foreign worker. The basic requirements are that the position and the nature of your company s business demand the services of an individual with at least a baccalaureate level of education in a specific field, and that the foreign worker holds the relevant degree or equivalent experience. The foreign worker s non-u.s. educational credentials and/or experience should be evaluated to confirm equivalence to at least a U.S. bachelor's degree. An H-1B visa may be requested for an initial period of up to three years. The maximum total period of time a foreign worker can hold H-1B status is six years. Yearly extensions beyond the 6-years may be possible if a labor certification application or immigrant visa petition has been filed at least 1 year prior to the expiration date. Furthermore, three-year extensions beyond the 6-years may be possible for a foreign worker who is the beneficiary of an approved immigrant visa petition but due to per country limitations, is unable to file for or obtain his/her immigrant visa. After the 6-year cap is reached and if no application for permanent residency is pending, the foreign worker can return abroad for at least one year and will be eligible to enter the U.S. again in H-1B status for another 6 year maximum stay. The H- 1B visa is available for full-time or part-time employment. If a foreign worker wishes to work for more than one employer, he/she must have an approved H-1B petition for each employer. Upon approval of the H-1B petition, notice will be sent by USCIS (U.S. Citizenship & Immigration Services) to the designated U.S. Consulate overseas where the employee would present his/her passport for issuance of the H-1B visa stamp. Upon entering the U.S., the immigration officer at the airport or other port of entry will issue an I-94 card which is proof of H-1B status and allows him/her to begin work for your company. Or, if the employee is presently in the U.S., has properly maintained his/her current immigration status, he is eligible to change status to H-1B and does not need to depart the U.S. Once a change of status petition has been filed, the foreign worker should not depart the U.S. until approval. If foreign travel is required while the petition is pending, consult your attorney. If the foreign worker is presently in H-1B status with another employer, special portability rules may apply which will enable him/her to begin working for your company upon filing the new H-1B petition to change employers. The H-1B visa is valid only for employment with the petitioning company. The number of H-1B visas available each fiscal year (October 1 to September 30) is only 65,000. This number has proved insufficient and legislation was recently enacted to allow an exemption to the 65,000 cap for up to 20,000 H-1B visas if the foreign worker has earned a Master s or higher degree from a U.S. university. While most employers are subject to the cap and cannot hire an H-1B worker once the cap is reached until the start of the new year (October 1), in certain situations the employer is
considered exempt from the cap. Institutions of higher education, non-profit entities related to or affiliated with institution of higher education, and non-profit and government research organizations are exempt. Also, if the foreign worker currently holds or has held H-1B status in the past, he may also be exempt. Spouses and unmarried children under 21 are eligible for H-4 dependent visa status. They are not allowed to work unless they obtain an independent visa or status that authorizes employment. Those in H-4 status may attend school. LABOR CONDITION APPLICATION Prior to filing the H-1B visa petition with USCIS, it is necessary for the prospective employer to file a labor condition application with the Department of Labor (DOL). The application form requires that your company agree to several specific statements, which are for the benefit of U.S. workers. The first is an assurance that the foreign worker will receive the required wage, which is the same pay as other similarly employed workers at your company or the prevailing wage in the area, whichever is higher. DOL regulations state that the H-1B worker cannot pay the attorneys fees or other costs related to the H-1B if payment by the H-1B worker will reduce the salary to below the required wage. If someone other than the employer will pay any fees and costs related to the H-1B petition, including through reimbursement or payroll deduction, you must let your attorney know as there is a high likelihood of liability for the employer. We will obtain a prevailing wage from a government wage source or a recognized wage survey service for the position in which the employee will be hired, and for the designated geographic area. DOL regulations also contain a no benching requirement. The employer must continue to pay the offered wage even when the H-1B holder is not working, unless the reason for not working is at the voluntary request of the foreign worker that is not related to the lack of work. The H-1B foreign worker must be offered benefits and eligibility for benefits on the same basis and in accordance with the same criteria as the employer offers to U.S. workers. The company will also affirm that the employment of the foreign worker in the H-1B position will not adversely affect the working conditions of other workers with your company similarly employed in the area of intended employment, and that there is no strike, lockout or work stoppage in the course of a labor dispute in the occupations at your company. Another requirement is that on or before the date of filing of the LCA application with DOL, two notices will be posted in conspicuous places at the place of employment. These notices must contain specific information including the job title and salary or salary range being offered to the H-1B foreign worker. In lieu of hard copy notices, there are electronic posting options available. If there is a bargaining representative for workers in the occupation in which the H-1B worker will be employed, then notification to that representative will be required instead of posting the notices. Within one day of filing of the LCA, supporting documentation must be available for inspection at the place of employment or at the company s principal place of business. Any individual or group can request a review of this information. Important note regarding on-line availability of certified LCAs to the public: On July 1, 2013, the U.S. Department of Labor (DOL) implemented the Labor Certification Registry (LCR), which makes available to the general public complete but appropriately redacted copies of certified Labor Condition Applications (LCA) filed in connection with H-1B, H-1B1 and E-3 petitions as well as certified PERM Page 2
labor certifications. Please note that the records for the certified LCAs publicly display information such as company name, company contact information, job title, occupation classification, worksite location, offered wage or wage range, prevailing wage, prevailing wage source used, and attorney/law firm information as entered on the ETA Form 9035. This information was previously available to the general public via the DOL s Freedom of Information Act (FOIA) process. However, the data is now more easily accessible via the web portal. EMPLOYER OBLIGATIONS In addition to the LCA requirements, there is an H-1B provision which employers should note. An H-1B employer is liable for the reasonable cost of return transportation to the H-1B worker's country of last residence if the alien is dismissed from employment before the end of the period of stay granted on the H-1B. However, if the H-1B worker voluntarily ends his or her employment, the employer is not liable for return transportation expenses. Also, if the H-1B worker stays with the employer for the entire period of the visa petition, the employer has no obligation for return transportation expenses. Employers that are H-1B dependent will be subject to additional obligations and attestations. Such an employer is defined as one with (1) less than 25 full time equivalent (FTE) employees in the U.S. and more than 7 are H-1B non-immigrants; or (2) 26 to 50 FTE employees in the U.S. and more than 12 are H-1B non-immigrants; or (3) over 50 FTE employees and 15% are H-1B non-immigrants. Please be sure to advise our office if it appears that your company qualifies as an H-1B dependent company so that we may apprise you of additional requirements for processing an H-1B visa petition. SWORN STATEMENTS FOR H-1B PETITIONS The H-1B Petition incorporates the following sworn statements to be signed by the employer: The employer certifies that it will maintain a valid employer employee relationship with the employee at all times; The employer certifies that if the employee is assigned to a new location, it will obtain and post a Labor Condition Application for that site prior to reassignment; and The employer certifies that it cannot charge the employee the $1,500 American Competitiveness and Workforce Improvement Act (ACWIA) fee, and that any other required reimbursement will be considered an offset against wages and benefits paid relative to the Labor Condition Application. IMPLEMENTATION OF PUBLIC LAW 111-230 FILING FEE FOR H-1B PETITIONS On August 13, 2010, President Obama signed into law Public Law 111-230, which contains a provision for employers who have 50 or more employees in the U.S. and more than 50% of those employees are in H 1B or any L nonimmigrant status, to pay an additional $2,000 fee for each initial H 1B petition. The new H 1B filing fee does not apply to extension petitions. This Law will remain in effect until September 30, 2015. Page 3
NEW RELEASE STATEMENT SIGNED BY EMPLOYER FOR USCIS AUDITS AND ACCESS TO RECORDS By signing the H-1B petition (Form I 129), the employer authorizes the release of any information of its records that USCIS needs to determine eligibility for the benefit being sought. Furthermore, the employer affirms that it recognizes the authority of USCIS to conduct audits of the petition using publicly available open source information. Finally, the employer recognizes that supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS including, but not limited to, site visits and onsite compliance reviews. MAINTENANCE OF EMPLOYER-EMPLOYEE RELATIONSHIP AND OFF-SITE WORK LOCATIONS Furthermore, Employers are required to disclose on Form I 129 whether the employee will work off site. If the employee will be providing services at more than one location, the employer should include an itinerary with information regarding the dates and places of assignment. U.S. Citizenship and Immigration Service currently adopts a right of control definition of employment and provides a list of 11 questions for adjudicators to consider when processing H-1B petitions: 1. Does the petitioner supervise the beneficiary, and is such supervision off-site or on-site? 2. If the supervision is off-site, how does the petitioner maintain such supervision, i.e., are there weekly calls, routine reports back to the main office, or site visits by the petitioner? 3. Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required? 4. Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment? 5. Does the petitioner hire, pay, and have the ability to fire the beneficiary? 6. Does the petitioner evaluate the work product of the beneficiary, i.e. are there progress/performance reviews? 7. Does the petitioner claim the beneficiary for tax purposes? 8. Does the petitioner provide the beneficiary any type of employee benefits? 9. Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment? 10. Does the beneficiary produce an end-product that is directly linked to the petitioner s line of business? 11. Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished? USCIS applies a totality of the circumstances analysis in assessing whether an employer-employee relationship exists for purposes of the H-1B visa petition. CERTIFICATION OF COMPLIANCE WITH U.S. EXPORT CONTROL REGULATIONS A new certification dealing with U.S. laws regarding export controls has been added to the H-1B petition. Under both the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), release of controlled technology or technical data to foreign persons in the United States even if by an employer is deemed to be an export to that person s country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. government before it releases controlled technology or technical data to its nonimmigrant workers Page 4
employed in H 1B, H 1B1, L 1 or O 1A nonimmigrant visa status. The employer must certify on the new H-1B petition that it has reviewed the EAR and the ITAR and that it has determined whether an export license from the U.S. Department of Commerce or the U.S. Department of State is required. If the employer has determined that an export license is required, the employer must certify that it will prevent access to the controlled technology or technical data by the employee until and unless the employer has received the required license or other authorization to release it to the employee. To determine which technology and technical data are controlled for release to foreign persons, please review the EAR s Commerce Control List (http://www.gpo.gov/bis/ear/ear_data.html) and the ITAR s U.S. Munitions List (http://www.pmddtc.state.gov/regulations_laws/itar_official.html). FEES There are various fees associated with filing an H-1B visa petition. In addition to the attorney legal fee, some or all of the following CIS fees may be required: $325 H-1B Petition Filing Fee $1,500 Training and Scholarship Fee to benefit U.S. workers ($750 for employers with 25 or fewer employees). Only the employer (not the H-1B worker) can pay this filing fee. Note: certain employers are exempt from this fee including institutions of higher education, non-profit entities related to or affiliated with institutions of higher education, non-profit and government research organizations, and primary and secondary schools. $500 Fraud Prevention and Detection Fee. Only the employer (not the H-1B worker) can pay this filing fee. $1,225 Optional Premium Processing Fee to obtain a decision within 15 calendar days of filing. Processing times for H-1B visa petitions can be found at our website www. under Processing Times / Service Center. AMENDMENTS Finally, employers should be aware that material changes in the job duties, changes in job location, and changes in the employer s ownership structure may require a new or amended H-1B petition. Your attorney should be notified of any changes in employment to determine whether a new petition is needed. If you would like further information, please contact Foster LLP at 713-229-8733 (Houston), or at 512-478-9475 (Austin) or email a consultation request through our website at www.. This article is made available for informational purposes only and does not constitute legal advice. Page 5