H1B Visa Overview:
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.
H1B Recruiting Process:
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.
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.
H-1B Visa is subject to approval. Each applicant must have valid passport and need to complete a Visa application form, pay the fee, and appear for the visa interview at the nearest applicable US consulate in the home country.
What documents are required for H1B visa petition ?
Employer may require certain document from the foreign worker for the purpose of petition. Following is a typical sample of the required document for H-1B petition:
- Copy of passport.
- Copy of degrees /educational certificates / transcripts.
- Letter of current employment.
- Copy of previous employment /experience.
- Copy of any certifications/achievements.
H1B Benched 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 Quota:
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.
Labor Condition Application (LCA):
Before an H1B application can be made, the employer must be granted a Labor Condition Application by the Department of Labour. This states the employer’s agreement to carry out the following:
to pay the employee a wage that is not less than the wage paid to similarly qualified workers, or if more, to pay the employee a wage generally accepted for such a position locally to provide the employee with working conditions that will not have a negative or detrimental effect on similarly employed workers.
The employer must at this point confirm that no strikes, lockouts or other work stoppages are in place, and if any of these should occur after the initial filing of the LCA the employer must notify the Department of Labour.
The employer must inform their existing employees that the LCA has been submitted. A notification must be posted at two separate locations at the business’ premises for a minimum of 10 days.
Employers are legally required to keep a public access file to demonstrate the above compliance, which must be made available for public inspection.
Who qualifies for H-1B Visa ?
The employer must ensure that all of their H1B applicants are eligible for the program. For a worker to be eligible, they must meet at least one of the following requirements:
Have completed a US bachelor’s or higher degree in the related speciality occupation from an accredited educational institution, or hold an equivalent foreign degree
Have an unrestricted state licence, registration or certification which allows them to perform and be employed in the speciality occupation, in the state where the employment is located
Have the education, training or experience in the speciality equivalent to a degree and be recognised as having a suitable level of expertise in the speciality
Any applicant who is deemed by USCIS and immigration officials to not meet these requirements will be denied an H1B visa.
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.
H1B fees Structure:
There a number of fees involved with an H1B application.
While the employee will be required to pay for their visa application and those of any dependants, the responsibility for paying for the H1B petition fees lies with the employer. As at July 2018, the petition fees are:
- Basic filing fee: $460
- ACWIA fee: for companies with 25 or less employees $750, and for companies with more than 25 employees $1,500
- Fraud prevention and detection fee: $500
- Public Law 114-113: £4,000
The fee relating to Public Law 114-113 should only be paid by companies who have over 50 employees and where over half of those are employed through the H1B or L1 visa path.
It is not necessary to pay the Fraud prevention and detection fee if the H1B petition is for a Chile or Singapore Free Trade Agreement worker.
There is an optional premium processing fee of $1,225 which may be paid by either the employer or the employee.
The following organisations are exempt from paying the ACWIA fee:
- Higher education institutions
- Non profit entity related to or affiliated with higher education institution
- Non profit research organisation
- Governmental organisation
- Primary educational institution
- Secondary educational institution
- Non profit entity engaging in curriculum related clinical training programmes for students
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).