H-1B CATEGORY GENERALLY

The H-1B category is a temporary visa classification with initial maximum validity of three years. It is generally renewable up to a total of six years. Although it is a nonimmigrant (temporary) category, it does allow Adual intent,@ meaning that an individual in H-1B status may apply for permanent residence (i.e., may have Aimmigrant intent@) without violating the terms of his/her H-1B status. Spouses and dependent children of H-1B nonimmigrants are eligible for H-4 status. That status is not automatically conferred or renewed with an H-1B petition and must be applied for or extended separately. H-4 nonimmigrants may not be employed in the U.S.

LABOR CONDITION APPLICATION

The first step in obtaining H-1B status is to file a Labor Certification Application (LCA) with the U.S. Department of Labor (DOL). The LCA is filed electronically with the DOL and takes approximately 7 days to process. Only after the LCA is filed and certified may a petition be filed with the U.S. Citizenship and Immigration Services (USCIS or CIS) to obtain permission to hire an H-1B worker.

When signing the LCA, the employer makes several legal affirmations, among them that the H-1B worker(s) will be paid the Arequired wage rate@ for the occupation. The required wage rate is the higher of the prevailing wage for the occupation in the area of intended employment or the actual wage paid to similarly employed employees of the company in the same occupation at the work site (whichever is higher). Only guaranteed wages (not commissions or bonuses which depend on performance) may be used in determining whether an employee’s wage meets the prevailing wage requirement. We obtain relevant Aprevailing wage@ information from the government=s wage database or by specific request from the Department of Labor. Alternate wage surveys may only be used if they meet very specific criteria (including methodology) set forth by the government.

The employer also affirms in the LCA that it has offered the H-1B worker(s) benefits Aon the same basis, and in accordance with the same criteria@ as similarly situated U.S. workers. These attestations ensure that employers do not undercut U.S. workers by hiring foreign workers at lower wages or under worse conditions.

H-1B DEPENDENT EMPLOYERS

Employers that are AH-1B dependent@ or that have engaged in willful violations of the LCA requirements must make additional attestations on the LCA. The determination of whether an employer is H-1B dependent must be made before the filing of each new LCA. H-1B dependent employers must affirm that they have not displaced a U.S. worker during the 90-day period preceding the filing of an H-1B petition and ending 90 days after filing the petition. Such employers must also confirm: (1) that they have taken good faith steps to recruit U.S. workers for the job for which an H-1B worker is sought; and (2) that they have offered the job to any U.S. worker who applied and was equally or better qualified for the job than the H-1B nonimmigrant whom the employer seeks to hire. Only if the LCA is filed exclusively for Aexempt employees@ does a dependent employer or willful violator not have to make these attestations. Exempt employees are those who either hold a master=s degree (earned degree, not work-experience equivalent) or are salaried in excess of $60,000 per year.

PUBLIC ACCESS FILE

As part of the LCA process, employers are required to maintain documentation that they have complied with the attestations listed on the LCA. None of this documentation needs to be submitted to the DOL with the LCA, but some of it must be available for public inspection in a Apublic access@ file. The rest must be maintained in a separate file for review in the event of a DOL investigation. Both of these files should be kept separate from other employment and personnel files. Separation of these records will avoid a confidentiality breach and unnecessary disclosure of compensation data.

The employer must begin maintaining the public access file within one day after filing the LCA with the DOL. The public access information may be kept at the employer=s principal place of business in the United States or at the location where the H-1B worker will be employed. Any person or group, whether or not Aaggrieved@ by the employer=s conduct, may request to see the public access file. The file must be made available to the requestor within one business day of the request. The employer must maintain these records for at least one year after the end of the period of employment indicated on the LCA or, if a timely complaint is filed, until the complaint is resolved. We will provide you with a list of documentation to maintain for public inspection or potential DOL investigation when we send you the LCA for signature and posting.

FILING THE PETITION WITH THE CIS

After the LCA is certified, the CIS petition (Form I-129 and H supplement, with proper supporting documentation and forms) is filed with the CISServiceCenter having jurisdiction over the work site. The documentation submitted with the petition includes proof that the job to be filled is a specialty occupation (one requiring a bachelor=s degree or higher) and evidence of the employee=s credentials. If the worker has a foreign degree, the degree usually must be evaluated by a recognized degree evaluation service. If the worker is lacking the degree usually required to enter the occupation, his or her education and experience must be evaluated by a credential service to determine whether the combination of work experience and education are the equivalent of the normally required degree (usually the ratio used is three years of professional experience in the field is equivalent to one year of formal education). Credential evaluations sometimes require extensive documentation and may be time consuming and/or expensive, but they are absolutely necessary in some cases. No evaluation is needed if the potential employee=s degree was obtained in the U.S.

The CISServiceCenter may take a few months to adjudicate the H-1B petition unless expedited processing is requested. In the latter case, an additional $1,000 fee is required, but the employer should receive an initial response within 15 days of filing and will have access to better service from the CIS. Only after the petition is approved may the H-1B worker take the approval notice to a U.S. consulate to obtain an H-1B visa to enter the U.S. If the petition indicated that the H-1B worker was already in the U.S. in valid status and was requesting a change of status to H-1B, the worker may commence employment for the employer once the H-1B petition is approved. The worker does not need a visa stamp until his/her next trip outside the U.S. (a visa stamp in the passport does not determine statusBit is only proof of status needed to re-enter the U.S.) If the worker was already in H-1B status with another employer at the time of filing your H-1B petition, s/he may be eligible to begin employment with you as soon as the H-1B is received by the CIS (rather than having to wait for an approval). Approval of an initial H-1B may be given for up to three years, and extensions of stay may be granted to a maximum period of stay of six years (although the law permits extensions beyond the six years in limited circumstances).

EMPLOYER=S CONTINUING OBLIGATIONS AFTER PETITION APPROVAL

The employer has several continuing obligations once the initial H-1B approval has been received. If the H-1B worker is assigned to work sites not listed on the original LCA and outside of the geographical area listed, a new LCA must be filed (with a new prevailing wage determination, actual wage calculation, and posting). Any material changes in the employment described in the LCA petition must be approved by the CIS through the filing of an amended petition (after a new LCA is certified). Cuts or increases in hours or pay may or may not result in the need to file a new petition and/or LCA; please consult with us should those circumstances arise. A corporate restructuring (such as a merger, acquisition, or consolidation) does not necessitate a new petition where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner; however, the change should be addressed upon extension of any H-1Bs.

As mentioned above, the employer also has an obligation to produce its LCA documentation to any requestor (public inspection file) or to the DOL (all documentation). The DOL may investigate based on its own initiative or (more commonly) based upon a complaint by an Aaggrieved@ party. A DOL finding that the employer has violated the LCA requirements, such as through Awillful@ failure to pay the required wage rate or Asubstantial@ failure to post a notice of the LCA filing could result in fines, an demand for payment of back wages, or may result in the employer being prohibited from filing additional LCAs, applications for labor certification, or nonimmigrant petitions for a period of at least one year.

The employer also has an obligation to pay the costs of return transportation (to his/her home country) for any H-1B worker whose period of employment is terminated by the company prior to the expiration date of the worker=s status. The CIS expects the employer to meet this obligation, but also considers it a contractual matter between the employer and employee and therefore does not directly verify compliance. The employer is not obligated to similarly pay the cost of the employee=s family return transportation. Employers must also withdraw the petition of any terminated H-1B employee; failure to do so may result in a continuing obligation to pay a terminated H-1B employee.

The employer may not Abench@ an employee (put in nonproductive status due to a decision by the employer, including lack of work assignments) without paying the employee. H-1B workers should be offered the same benefits as other employees.

PAYMENT OF H-1B LEGAL, FILING, AND USER FEES

The payment of legal fees for the preparation of H-1B paperwork and legal services performed in connection with obtaining H-1B status are arguably a business expense. An employee may cover legal expenses only if his/her wage is high enough that the deduction of those expenses from his/her salary does not decrease the salary below the prevailing wage threshold (even if funds will come from elsewhere). Visa fraud detection/prevention fees ($500) may arguably be paid by either party, but the $1,500 or $750 (depending on number of employees) ACWIA H-1B user fee (used to educate and train U.S. workers) and the H-1B filing fee ($320) must be paid by the employer with no employee contribution. Premium processing fees, if applicable, may be paid by anyone.

DUAL REPRESENTATION

Immigration attorneys generally represent both the employer and the employee in this process.