Non-Immigrant Visas - H-1B Temporary Workers
The H‑1B is a type of non-immigrant visa that is available to persons in "specialty occupations," which has been interpreted to include “professionals.” It is generally issued for an initial three year period, and may be extended for an additional three years. Although there are some exceptions, generally an individual may not possess this status for more than six years consecutively.
To be eligible for H‑1B status, an individual must demonstrate the following: (1) that the position being offered is a specialty occupation; and (2) that the individual is qualified in a specialty occupation. The U.S. Citizenship and Immigration Services ("USCIS") will recognize a position as a specialty occupation if it requires at least the minimum of a Bachelor’s degree in a field which normally requires a degree. Accordingly, the individual will be considered to be qualified in a specialty occupation if he or she holds the minimum of a Bachelor's degree, but it must be in a field required by the position.
Pursuant to regulations, USCIS recognizes a position as a specialty occupation if it is “an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a Bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.”
To qualify as a specialty occupation, the position must meet one of the following criteria:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; OR
- The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
To begin this process, the employer files Form I‑129 (Petition for a Nonimmigrant Worker) in duplicate. In addition, the employer would normally also include an Affidavit signed by the employer to accompany the petition. The Affidavit will provide background information pertaining to the employer. It will also set forth a detailed job description, including minimum requirements thereof, and will contain the educational and professional history of the individual, indicating that he or she is qualified for the position. In support of the petition, it is necessary to file a copy of the individual's educational degree (along with English translation, if required). Sometimes, an evaluation of foreign degrees is recommended.
In the absence of a degree, there are also provisions for establishing that the individual has the “equivalent” of a Bachelor’s degree through a combination of work experience and schooling. Generally, USCIS uses a “3 for 1” rule - i.e., an individual must have three years of progressively more responsible experience for each year of college lacking. Suffice it to say that the absence of a Bachelor's degree makes a case more difficult but such cases still may be explored on an individual, case‑by‑case basis.
The H‑1B petition and supporting materials are filed with a regional Service Center of USCIS. If an approval is issued, an overseas foreign national brings the approval notice into the U.S. Consulate as proof that USCIS has approved the H-1B petition. At this point, even though USCIS has approved the underlying petition, the Consulate still has independent authority and discretion concerning whether to issue the H-1B visa.
Prior to filing an H‑1B petition or extension thereof on behalf of an employee, employers are required to first file Form ETA-9035, Labor Condition Application, with the Department of Labor. The filing of this application has increased the paperwork for employers and requires certain legal work prior to the filing of an H‑1B petition.
A summary of the regulations pertaining to this application are as follows:
Approved Labor Condition Application
Before filing an H‑1B petition or extension, an employer must file and receive an approved labor condition application. In this application, the employer is attesting to the following:
- The employer will pay the foreign national either: (1) the actual wage level paid by the employer to all other individuals at the worksite with similar experience and qualifications for the specific employment in question, or (2) the prevailing wage for the occupational classification in the area of intended employment, whichever is greater, based upon the best information available as of the time of filing the application.
An employer has the option of obtaining a prevailing wage determination from the DOL or obtaining a prevailing wage provided by a reputable survey company. The safest route appears to be to obtain prevailing wage information from the DOL prior to filing. This is the only "safe harbor" in the event of a DOL or USCIS audit. However, the DOL wage surveys can take 1 to 2 months to be issued, and are often unreliable and unrealistic in that they only offer four-tiered wage data. This official prevailing wage data does not take into consideration the wide array of acceptable wages for employees in the marketplace. Accordingly, because the regulations specifically authorize the use of private wage surveys, employers often use their own data or obtain wage information from a private wage survey company.
Employers are required to formalize the details from which they based the wage determination and keep it on file with the other required documentation. The employer must document in the employee's file the basis of the prevailing wage determination and the fact that the wage to be paid to the foreign national meets or exceeds that paid to other similarly situated individuals in the Company.
No Adverse Effect on Other Workers Similarly Employed
The employer must provide working conditions for H-1Bs that will not adversely effect other workers similarly employed. Working conditions commonly refer to matters "including hours, shifts, vacation periods and fringe benefits." This also needs to be documented.
No Strike or Walk-out in Effect
There is no strike or walk‑out in effect in the course of a labor dispute in the occupational classification at the place of employment at the time of filing.
Public Notice Requirement
The employer must provide public notice of the intent to employ an H‑1B alien. If there is a union representative, notice must be given to that representative. If there is no union, then the employer must post a notice of intent to employ an H‑1B alien at the place of business at two conspicuous areas for ten business days. The employer must inform the public of the contents of the labor condition application and include a statement that would permit an individual to lodge a complaint with the Department of Labor if an interested party felt there were misrepresentations. Records must be kept of such postings. The notice must be provided to the bargaining representative or posted on or before the labor condition application is filed.
Regarding the posting, the actual Labor Condition Application may be posted; or in the alternative, the employer may compile the requisite information for posting as follows: (1) the number of H‑1B nonimmigrants the employer is seeking to employ; (2) the title of the position in which the H‑1B nonimmigrant will be employed; (3) the wages offered and the prevailing wage; (4) the dates of employment; (5) the location where the nonimmigrant will be employed; and (6) that the labor condition application is available for public inspection at the employer's principal place of business or at the worksite (should you choose not to post the actual application). In addition, this notice must contain the following:
"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 U.S. Department of Labor."
The application must be filed with the Department of Labor. The DOL will review such application for completeness and obvious inaccuracies. Unless the DOL finds that the application is incomplete or obviously inaccurate, the application shall be certified. Please be advised that the posting is not an advertisement but merely a notice. The certified LCA is then submitted with the H‑1B package for filing with USCIS.
If a complaint is received by the Department of Labor and if it is determined that the employer failed to meet certain conditions or that it misrepresented a material fact in an application, a monetary fine may be imposed in the amount of up to $1,000 per violation. In addition, sanctions may also include the denial of petitions/applications filed by the employer for up to one year after a violation. If it is determined that an alien has not been paid the wage level specified in the application, the employer shall be ordered to provide back pay to the alien.
Complaints Regarding H-1B Employment
The standards for making a determination on a complaint by the Secretary of the Department of Labor are as follows:
- There are three remedies or penalties available to the DOL in the event of a violation: a) civil money penalties in an amount not to exceed $1,000 per violation; b) prohibition on employer filing any applications or attestations with DOL for at least one year; and c) an order to pay back wages to the employee.
- Where the employer fails to pay the required wage, DOL must collect back wages regardless of whether the other sanctions are applied. This sanction must be imposed regardless of whether the violation was willful or not.
- Civil penalties and the prohibition of future filing sanctions may only be assessed where DOL finds "a willful failure to meet the required wages and working conditions." Legislative history suggests that a willful violation is one in which the employer knowingly disregards the application requirements. Good faith appears to be a defense to these sanctions. This further accentuates the need to document the basis for each element of the application and to preserve those records for inspection as required by law.
The employer is required to furnish an alien with an airline ticket to the employee's country of origin in the event of termination. The only exception is where the alien voluntarily terminates his or her employment.
A labor condition application must be filed each time a new H‑1B petition or extension is filed.
Please contact us or schedule an initial consultation for further information.
|
