H ONE  B

Who is eligible for an H-1B?

The H-1B is a nonimmigrant visa that enables professionals in "specialty occupations", i.e., those that require a minimum of a baccalaureate, to work in the United States. A U.S. degree or acceptable foreign alternative is required.

In some cases, work experience and education may be combined to meet the requirements. Non-graduates may be employed on an H-1B VISA where they can claim to be “graduate equivalent” with twelve or more years work experience in the occupation (three years of relevant work experience may substitute for one year of education).

To simplify, you need either a Bachelors degree or 12 years experience. If you have 3 years of higher education and 3 years of experience, this would also probably be sufficient.

It is important to keep in mind that the job offered must be a "specialty occupation," i.e. one that requires four years of higher education.

I don't fully understand the concept of "specialty occupation." I have a Bachelor's degree and a job offer in the same field. Any possible problems?

Yes. Several years ago, our office assisted an employer in filing an H-1B on behalf of a Marketing Manager. The beneficiary had a Bachelor's degree in "Marketing Management" from a renowned university in the United States. Nevertheless, the petition was denied because the government (at that time, INS) argued that one does not need four years of undergraduate education to be a Marketing Manager.

In order to qualify for a "specialty occupation," the occupation in question must actually require four years of undergraduate education.

What is the duration for an H-1B?

The H-1B visa is valid for three years. It is renewable for another three years. After six years, it may be possible to continue renewing the H-1B in certain situations. For example, if your employer has filed an application for Labor Certification on your behalf before the start of your sixth years, you may be able to continue extending your H-1B in one year increments while awaiting approval of your green card.

What are the fees involved?

The employer must pay for form I-129. The fee is currently $320.00. In addition, there is a $500 Anti Fraud and Detection fee. Finally, if the company has 25 or more employees, there is a training fee of $1500.00. If the company has less than 25 employees, this fee is $750.00. Therefore, the total filing fee for a company with over 25 employees is $2,320.00.

If your company is filing an extension on your behalf after 3 years, the only fee is for form I-129, $320.00.

It is important that the application be submitted on April 1, 2008 in view of the quota. Even if the application is submitted on day one, there is no guaranty that your application will be selected for adjudication.

How does the H-1B visa quota system work?

On October 1st, the USCIS makes available a certain number of H-1B visas for the next 12 months.

The Quota for the Fiscal Year (FY) 2009 (October 1st, 2008 to September 30th, 2009) is 65,000. In addition, there is also a quota of 20,000 for US Master Degree Holders. The total quota is therefore 85,000.

The first date one can apply for the H-1B Visa is 6 months before the requested start date. On April 1, 2008, the employer may submit an application for a start date of October 1, 2008.

It should be noted that H-1B visa holders are not subject to the quota when applying for a transfer to another company or an extension with the same company.

If a Public School Systems is affiliated with a University (usually for student teaching), it will likely be exempt. Non-profit organizations affiliated with a University are exempt from the annual quota.

I am currently on OPTIONAL PRACTICAL TRAINING (OPT) which is scheduled to expire on July 15, 2008. If an employer files for the H-1B Visa for me on or after April 1, 2008, may I remain legally in the US until October 1, 2008 when my H-1B employment begins?

If your OPT expires ON or AFTER 8/1/08, you will be issued a change of status and an I-94. This means you will NOT be required to leave the US for Consular Processing. This is because you are allowed 60 days after your OPT expires to remain in status in the US.

If your OPT expires BEFORE 8/1/08, your H-1B petition will be approved, but your change of status will NOT be approved. You will be required to leave the US and appear at an American Consulate for an H-1B visa stamp before returning to the US to start work on 10/1/08. (It would be advisable to bring a copy of the complete H-1B application that your employer submitted.

To avoid leaving the US, you must somehow maintain legal status. A possible solution is to re-enroll in school from the time your OPT or grace period expires until 10/01/08.

Are H-1B Visa Holders required to pay US income taxes?

You bet. An H-1B visa holder is subject to withholding of Social Security (FICA) tax as well as federal and state income taxes. H-1B visa holders are taxed as "resident aliens", on their worldwide income and may claim deductions for family members.

There is a risk that my employer may lay me off. If this happens, what should I do? Will I be out of status?

USCIS has indicated that it considers H-1B Visa holders to be out of status once their employment ends, unless the H-1B holder has filed a petition to transfer their visa to another company or another type of visa (example: F-1 Student Visa, B-2 Tourist Visa, etc.). It has been rumored that H-1B holders have 10 days or 30 days after they are laid off to file a transfer petition. This is not true, however the USCIS has stated they are taking into account the current economic slowdown into account when adjudicating H-1B Transfers. As in many other aspects of immigration law, the adjudicators have a great deal of discretion.

I am currently in H-1B status with company A. Company B wants to hire me. And I would like to accept. What do I do?

Company B must file a petition to transfer your H-1B visa to their company. You may work for Company B immediately after the petition is filed with the USCIS. You may not commence employment until the petition is filed . To be in status, you should be working with your current employer until the new petition is filed.

Can an H-1B Holder start his or her own company and work for that company?

Yes, an H-1B Holder may start his own company and work for that company. In order for the person on an H-1B to work for their own company, the company must file a petition on behalf of the beneficiary (i.e. the person who will be working there.) In this scenario, it is prudent to await approval before actually working for the new company.

Individuals who are not citizens or lawful permanent residents may not own the shares of an S corporation.

It should be noted that the USCIS will not approve the petition unless they are convinced that the company is a real, legitimate company and will be able to generate enough revenue to pay your salary at least the prevailing wage.

It would be advisable to provide a business plan as well as copies of contracts with client companies, and a business lease.

What are the employer's obligations?

Basic Provisions/Requirements

The INA allows employment of alien workers in certain specialty occupations (generally those requiring a bachelor's degree or its equivalent). Foreign workers such as engineers, teachers, computer programmers, medical doctors, and physical therapists may be employed under the H-1B, H-1B1, and E-3 visa classification.

The INA sets forth certain prerequisites for employers wishing to employ H-1B, H-1B1, and E-3 nonimmigrant workers. To obtain H-1B or H-1B1 status approval, the employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor. The employer must state that it will:

• Pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; and offer benefits on the same basis as for U.S. workers;
• Provide working conditions for H-1B, H-1B1, or E-3 workers that will not adversely affect the working conditions of workers similarly employed;
• Not employ an H-1B, H-1B1, or E-3 worker at a location where a strike or lockout in the occupational classification is occurring, and notify ETA of any future strike or lockout; and
• On or within 30 days before the date the LCA is filed with ETA, provide notice of the employer's intent to hire H-1B, H-1B1, or E-3 workers. The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B, H-1B1, or E-3 worker will be employed. If there is no bargaining representative, the employer must post such notices in conspicuous locations at the intended place(s) of employment, or provide them electronically.

The number of new visas that can be issued each year is subject to a cap. H-1B visas are capped at 65,000 during a fiscal year; an additional 20,000 are available to those individuals who received a master’s degree or higher from a U.S. institution of higher education. H-1B1 visas are limited to 1,400 nationals of Chile and 5,400 nationals of Singapore; E-3 visas are limited to 10,500 nationals of Australia.

Additional rules apply to employers who are dependent upon H-1B workers or are willful violators of the H-1B rules. An H-1B dependent employer is, generally, one whose H-1B workers comprise 15 percent or more of the employer's total workforce. Different thresholds apply to smaller employers. H-1B dependent employers who wish to hire only H-1B workers who are paid at least $60,000 per year or have a master's degree or higher in a specialty related to the employment, can be exempted from these additional rules.

H-1B dependent employers and willful violator employers must attest to the following three elements addressing non-displacement and recruitment of U.S. workers:

• The employer will not displace any similarly employed U.S. worker within 90 days before or after applying for H-1B status, or an extension of status for any H-1B worker;
• The employer will not place any H-1B worker employed pursuant to the LCA at the worksite of another employer unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H-1B worker; and
• The employer, before applying for H-1B status for any alien worker pursuant to an H-1B LCA, took good faith steps to recruit U.S. workers for the job for which the alien worker is sought, at wages at least equal to those offered to the H-1B worker. Also, the employer will offer the job to any U.S. worker who applies and is equally or better qualified than the H-1B worker. This attestation does not apply if the H-1B worker is a "priority worker" (see Section 203(b) (1) (A), (B), or (C) of the INA).

The American Recovery and Reinvestment Act of 2009 requires all recipients of federal funds under Chapter 13 of the Federal Reserve Act or the Troubled Asset Relief Program of the Emergency Economic Stabilization Act of 2008 who want to hire H-1B workers to make the attestations required of an H-1B dependent employer that are listed above.

The Department of Labor has also created a new portal for accessing its electronic version of the Form ETA-9035E. The iCert system allows employers to have accounts that will automatically populate many of the fields in the form and to track the applications.

After the Department of Labor certifies the LCA, the employer will apply to the U.S. Citizenship and Immigration Services (USCIS) for approval to employ an alien worker under H-1B status so that alien workers may be hired. For H-1B1 and E-3 visas, after the Department of Labor certifies the LCA, the employer must follow the procedures of USCIS and the Department of State, which differ in some respects from procedures for H-1B visas.

The Department of Labor’s Wage and Hour Division is responsible for enforcement of this program.

Employee Rights

H-1B, H-1B1, and E-3 workers are granted a number of rights. The employer must give the worker a copy of the LCA. The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment, whichever is higher. The employer must pay for non-productive time caused by the employer or by the worker's lack of a license or permit. The employer must offer the worker fringe benefits on the same basis as its other employees. Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking "liquidated damages" pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker's breach of contract.

U.S. workers and job applicants may also have certain rights under the H-1B programs. U.S. workers employed by an H-1B dependent or willful violator employer may not be laid off within 90 days before or after the employer files a USCIS petition to employ an H-1B worker in an essentially equivalent job. In addition, an H-1B dependent employer or willful violator must offer the job to any U.S. worker who applies and is equally or better qualified for the job than the H-1B alien worker. The U.S. Department of Justice has the authority to investigate complaints of failure to hire qualified U.S. workers.

No employer of H-1B, H-1B1, or E-3 workers may intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing violations of H-1B, H-1B1, or E-3 provisions or for cooperating in an official investigation of the employer's compliance.

U.S. workers and H-1B/H-1B1/E-3 workers may also examine the public disclosure documents that the employer is required to maintain that provide information about the employer's compliance with the attestation elements.

Complaints about non-compliance with H-1B/H-1B1/E-3 labor standards may be filed with a local Wage and Hour Division office(http://www.dol.gov/esa/whd/america2.htm).

Recordkeeping, Reporting, Notices and Posters

Notices and Posters

There is no poster requirement.

There is a notice requirement. The employer must inform U.S. workers of the intent to hire a foreign worker by providing notice of the filing of the LCA to the bargaining representative if there is one, or, if there is no bargaining representative, by posting notice of filing in two conspicuous locations at the employer’s establishments, or by providing electronic notice (see below).  The notice must be provided on or within the 30-day period before the date that the labor condition application is submitted to DOL.  The notice must:

• Indicate that H-1B workers are sought
• Identify the number of H-1B employees the employer plans to hire
• State the occupational classification of the H-1B employees
• State the wages offered
• State the period of employment
• State the locations at which the H-1B employees will work
• State that the LCAs are available for public inspection at the employer’s U.S. principal place of business or at the worksite

The notice must include the following statement: “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 United States Department of Labor.”

If the employer is an H-1B-dependent employer or a willful violator, and the LCA is not being used only for H-1B exempt nonimmigrants, the notice must contain additional information and must also contain the following statement:

As noted above, notification may occur in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the bargaining representative for workers in the occupation or, if there is no bargaining representative, be posted for 10 consecutive days in at least two conspicuous locations at each place where any nonimmigrant will be employed. Notice can also be provided by whatever electronic means the employer normally communicates with its employees (e.g., e-mail, bulletin board, and home Web page).

A copy of the LCA must be provided to each H-1B nonimmigrant no later than the time the H-1B nonimmigrant reports to work at the place of employment.

Recordkeeping

Employers of any H-1B, H-1B1, and E-3 nonimmigrant workers are required to make a filed LCA and its supporting documentation available for public inspection at the employer’s principal place of business or at the place of employment of the H-1B/H-1B1/E-3 nonimmigrant workers within one day after the date of submission of the LCA. This public inspection file must contain the following:

• A copy of the certified LCA including cover pages
• Documents providing the wage rate paid to the H-1B nonimmigrant worker
• Method used to establish the “actual wage,” including any periodic increases which the system may provide
• Prevailing wage rate and a general description of the methodology of the source
• Documents showing satisfaction of the union/employee notification requirements
• Summary of benefits offered to U. S. workers and H-1B workers
• Where the employer utilizes the definition of “single employer” in the Internal Revenue Code (IRC), a list of any entities included as part of the single employer in making the determination as to its H–1B-dependency status

In the event of corporate change, the public inspection file must also contain:

• A sworn statement by a successor entity accepting all liabilities of predecessor entity
• Affected LCA number(s) and effective date(s)
• Description of successor entity’s actual wage system
• Successor entity’s employer identification number

Additional documentation is required for employers who are H-1B-dependent, willful violators, or TARP/Federal Reserve Chapter 13 recipients:

• List of “exempt” H-1B nonimmigrant workers
• Summary of recruitment methods, if the employer hired any “non-exempt” H-1B workers

In addition to the records listed above, every H-1B dependent, willful violator employer, and TARP/Federal Reserve Chapter 13 recipient must keep the required documentation concerning compliance with the non-displacement obligation.

Additionally H-1B, H-1B1, and E-3 employers must maintain complete payroll records and make such available to the Wage and Hour Division upon request. The records must include the following information:

• Name, address, and occupation, for all H-1B, H-1B1, and E-3 workers and any other worker employed by the employer in the same occupation at the place of employment
• Rate of pay, total wages paid each pay period, date of pay and pay period covered by the payment, and total additions to or deductions from pay each pay period for each H-1B, H-1B1, and E-3 worker and any other worker employed by the employer in the same occupation at the place of employment
• Hours worked each day and each week by the employee if the employee is paid on other than a salary basis (with respect to H-1B, H-1B1, and E-3 workers and any other worker employed by the employer in the same occupation at the place of employment)
• With respect to only H-1B, H-1B1, and E-3 workers, whether the worker is a part-time employee
• Documentation of the offer of benefits and eligibility for benefits provided as compensation for services

Payroll records for the nonimmigrant workers and other employees in the occupational classification must be maintained for a period of three years from the date of the creation of the records (or longer if an enforcement proceeding is in effect) and be kept at the employer’s principal place of business in the U.S. or at the place of employment of workers in the H-1B program.

The other records listed above must be kept for one year beyond the end of the employment period specified on the LCA, and be available at the employer’s principal place of business in the U.S. or at the place of employment

PLEASE BE ADVISED THAT THE INFORMATION IS THIS PAGE IS HIGHLY GENERAL AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE.