H-1B Visa Information Page
H-1B Petitions
National Association of Regional Councils – Member Organizations
For your convenience, and to assist you in the H-1B process, this document provides a general outline of the H-1B temporary professional worker visa process, including recent changes and regulations that have gone into effect.
An H-1B nonimmigrant visa is reserved for a foreign national who:
(1) enters the U.S. to perform services in a “specialty occupation”, i.e. an occupation that requires the theoretical and practical application of highly specialized knowledge requiring at a minimum a baccalaureate or higher degree (or its equivalent) for entry into the United States in that occupation; and
(2) possesses the required bachelor’s degree or equivalent.
The H-1B petition process involves two or perhaps three major steps. First, the employer applies to the Department of Labor (DOL) for certification of the Labor Condition Application (LCA). Second, the employer files a petition with U.S. Citizenship and Immigration Services (CIS) for H-1B visa classification for the foreign national beneficiary. The petition can be a petition for initial classification, an application for extension of status, or an application for change of nonimmigrant status. Finally, if the foreign national is outside the United States, or is in the U.S. at the time of approval but travels abroad and will need to reenter, the foreign national must submit his or her H-1B visa application to a U.S. consular post abroad. These steps are described in greater detail below.
1. Preparing the LCA
The process begins with filing the Form ETA-9035 Labor Condition Application for H-1B nonimmigrant’s (LCA) with the DOL. The LCA must be filed no earlier than six (6) months before the beginning date of the period of intended employment. Every effort should be made to include all potential worksites on the initial LCA. By filing the LCA with the Labor Department, the employer attests to the following:
a. It will pay the H-1B worker the higher of the prevailing wage level for that occupational classification by all employers in the geographic area of intended employment, or the actual wage level paid to all other individuals with similar experience and qualifications for the specific position. The employee must also be offered benefits on the same basis as U.S. workers.
The employer must retain documentation regarding the basis it used to establish the actual wage. The documentation can either be a Prevailing Wage Determination from the State Workforce Agency (SWA) or a private survey (we will provide you with this documentation). The wage being offered to the prospective H-1B employee must meet or exceed the prevailing wage.
b. The employment of the H-1B foreign national will not adversely affect the working conditions of workers similarly employed. “Working conditions” include “hours, shifts, vacation periods, and fringe benefits.”
The working conditions must be similar to:
1. working conditions that preceded the employment of the H-1B nonimmigrant;
2. working conditions of workers having jobs requiring a substantially similar level of skill at a work site or within the area of intended employment; or
3. if there are no substantially comparable jobs at the work site or in the area of intended employment, working conditions of workers having a substantially comparable job with employers outside of the area of intended employment.
c. On the date the LCA is signed and submitted, there is not a strike, lockout, or work stoppage in the course of a labor dispute in the relevant occupation at the place of business. If a strike or lockout occurs after submission of the LCA, the employer must notify the DOL within three (3) days of such occurrence.
d. On or before the date of the LCA, notice of the application is provided to the collective bargaining representative (CBR) or posted in two conspicuous locations in the employer’s establishment.
e. The employer is not an H-1B dependent employer and has not been found to have committed a willful violation or misrepresentation of a material fact relating to an LCA in the preceding five (5) years.
1. What is a Dependent Employer?
An Employer is H-1B Dependent if it employs in the U.S.
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Number of Full Time Employees (U.S. & H-1B Workers)
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Number of H-1B Workers
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1-25
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8 or more
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26-50
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13 or more
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51 or more
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15% or more of workforce
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2. What if you are a Dependent Employer?
A dependent employer must provide evidence of recruitment efforts to find U.S. workers unless the prospective H-1B employee earns at least $60,000 per year or holds a Master’s degree or higher that is in a specialty related to the proposed employment.
f. Dependent employers must also make the following attestations:
1. Displacement: employer will not displace any similarly employed U.S. worker 90 days before and 90 days after the H-1B petition is filed;
2. Secondary Displacement: employer will not place the H-1B employee with another employer or worksite UNLESS a bona fide inquiry is first made with the second employer regarding displacement of U.S. workers 90 days before and 90 days after the placement.
3. Recruitment and Hiring: before filing the H-1B petition, the employer made good faith efforts to recruit U.S. workers for the job being offered.
2. Risks Associated With Filing an LCA
The LCA procedure is complaint-driven; that is, an investigation into the accuracy of the
LCA will only occur if an aggressive party files a complaint. If a complaint is filed, the Labor Department’s Wage and Hour Administrator (the “Administrator”) will investigate the complaint and determine whether the employer misrepresented a material fact or failed to meet a condition specified in the LCA.
If the Administrator determines that the employer made a misrepresentation of a material fact in the LCA, or that is does not meet the applicable standards regarding each of the attestation elements, the Administrator may impose fines, bar the employer from obtaining future visas, and order the employer to pay back wages.
Material misrepresentations on the LCA can also subject the employer and the individual Company representative signing the LCA to penalties for perjury, including fines against the company and fines and incarceration of the individual representative. The care we take in preparing the LCA is intended to eliminate this risk of misrepresentation and imposition of any penalties.
3. Providing Notice of the Application
Notice of the LCA must be provided to the appropriate collective bargaining unit in the occupation in which the H-1B worker will be employed. Please immediately advise the attorney of the name and telephone number of the collective bargaining representative (CBR). If there is no such representative, then the LCA must be posted in at least two conspicuous places at the employment site (this includes all worksites where the H-1B employee works including client companies).
We suggest posting the LCA in the same place you post OSHA or other state and federal employment-related notices. The notice must be posted for 10 calendar days, with the first day occurring on or before the date the LCA is filed.
4. Satisfying Public Access Requirements
Within one working day of the filing of the LCA the petitioner must make available for inspection by the DOL the following documentation:
a. A copy of the completed LCA, unless the LCA was submitted to the DOL
by fax, in which case the original LCA must be available for public inspection;
b. The specific wage paid to the H-1B worker;
c. The employer’s salary system used to determine the actual wage for the occupation, including periodic increases the system may provide;
d. Evidence of notice provided to individual employees. This must include the dates, and locations where the notice was posted, or the date the notice was provided to the CBR; and
e. Evidence that the working conditions of similarly employed U.S. workers are not affected.
We will create a Public Access file that contains the above materials. Because the Public Access file must be available for public inspection, the company receptionist and any other company representative likely to receive inquires about the LCA should be informed about the responsible person to contact, if a request for LCA information is made.
The law requires the company to retain each document included in the Public Access file for one year beyond the end of the period of employment specified on the LCA or one year from the date the LCA is withdrawn. If a timely complaint is filed, the documentation must be retained until the complaint is settled.
5. Maintaining the LCA Documentation
By filing the LCA, the petitioner agrees to develop and maintain documentation supporting each labor condition statement. At a minimum, this includes the following documentation:
a. Payroll records for all employees in the H-1B foreign national’s occupation, starting with the date the LCA is submitted and continuing throughout the period of employment. The payroll records for each employee must include:
1. employee’s full name, home address, and occupation;
2. rate of pay;
3. hours worked each day and each week if paid on other than a salary basis, or if the prevailing wage is expressed as an hourly wage;
4. total additions to or deductions from pay each pay period; and
5. total wages paid each pay period, date of pay, and pay period covered by each payment.
This payroll information must be retained at the place of employment for three years from the date of the creation of the records (except when a timely complaint is filed, they must be retained until the complaint is resolved).
b. Documentation of the prevailing wage level. Again, this would be the ESC prevailing wage determinations, or documentation on the prevailing wage as determined by an independent authoritative source, or other legitimate source.
c. Documentation of the actual wage for the job position.
d. Copies of the notice posted for employee notification, i.e. a copy of the LCA and the required notice regarding complaints.
The regulations also suggest that employers maintain the following additional documentation regarding working conditions. In the event of a complaint, this additional information will assist the employer who will have the burden of proving compliance.
e. Documentation to support the working conditions attestation. The employer must be able to show that the working conditions of similarly employed workers were not adversely affected by the employment of an H-1B nonimmigrant. We also recommend that over the validity period of the LCA, the employer should assign a responsible employee to obtain any relevant information that discusses the working conditions for the industry, occupation and locale, such as published studies, surveys, or articles.
If the DOL demands production of these documents, a separate binder would provide prompt access without the necessity of presenting other personnel or corporate records to DOL officials. We will prepare an LCA Documentation folder containing items b through e.
6. Finalizing the LCA Process
Once the LCA has been certified by the DOL, we can file the H-1B petition. By law, an employer is prohibited from employing foreign nationals in H-1B status until the H-1B petition is approved unless in certain circumstances if the foreign national previously held H-1B status.
Once the LCA has been certified, it is vital that the employer contact our office if the foreign national does not begin, or prematurely leaves, employment with the company. Unless we formally withdraw the certified LCA, the employer will continue to be bound by the wage, working conditions, strike/lockout, and notice statements in the LCA.
7. The H-1B Petition and Application for the H-1B Visa
Once the LCA has been certified, we will complete and file the H-1B petition with the CIS. The petition will consist of the Form I-129 (Petition for a Nonimmigrant Worker), the H Classification Supplement Form, the H-1B Data Collection Supplement, a letter of support from the employer outlining the position duties and requirements, and supporting documentation, including the foreign national’s degree certificate and academic transcript, and information about the employer. If the foreign national is in the U.S., the petition will normally include an application for change of nonimmigrant status or an amendment of his stay (if he is currently employed by another employer). If the foreign national is not in the United States, he or she will have to apply at a US Consulate abroad to obtain an H-1B visa based upon the CIS approval.
Under the regulation, if the foreign national is dismissed from employment before the end of the period of authorized admission without cause, the employer will be responsible for the reasonable costs of return transportation to the foreign national’s residence abroad.
It is vital that your attorney be notified of any changes in wages, working conditions, or characteristics of the employment position, or if the H-1B foreign national changes jobs. Likewise, the attorney should be notified if there are any changes in the company’s corporate structure or ownership, or if any labor disputes occur. Such changes can affect both the LCA and the H-1B petition, which both refer to a specific job and to a specific foreign national.
8. Short-Term Assignments
When an H-1B foreign national is temporarily placed at new worksites within or outside of the geographic scope of the LCA, the employer may also be subject to posting and notice requirements at the additional sites. Please contact our office if the individuals will be placed at various work sites so that we can assist you in determining whether posting is required.
9. H-1B Filing Fees
There is a $320 filing fee for the H-1B petition. There is also a special H-1B Data Collection & Filing fee of either $750 (for employers with 25 or less employees) or $1,500(or $1,500 for employers with more than 25 employees). In addition, there is also a $500 Fraud Prevention & Detection Fee (If initial application by Employer on behalf of particular employee). Lastly, there is an optional $1,000 premium processing fee. Payment of this fee results in rush processing (approximately 15 days) of the petition as opposed to the typical 2-3 month timeframe.
NOTE: The following organizations are exempt from the above H-1B Data Collection & Filing Fee and, more importantly, are also not subject to the H-1B Quota. Please contact our office and we can assist you in determining if this exemption would be applicable to your H-1B Petition.
· An institution of higher education;
· An affiliated or related nonprofit entity. A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary;
· A nonprofit research organization or governmental research organization. A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research. A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research.
10. Potential Conflict Of Interest
Although at this time the interests of both the employer and employee appear to be the same (i.e., obtaining authorization for your H-1B employees to work) the LCA process involves the potential for a dispute between the employer and H-1B employee. If you wish to discuss this further, please contact me. If a conflict arises, we may need to withdraw as counsel in this matter.
We look forward to assisting you in this process. If you have any questions regarding H-1B process or any other immigration concern, please do not hesitate to contact Rajan P. Eapen at (202) 232-3888 or via email at reapen@eapenlaw.com.
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