H-1B Professionals Benefit U.S. Employers

H-1B professionals benefit U.S. employers by offering special expertise and insight in overseas markets, allowing U.S. companies to compete globally. H-1B professionals also provide essential technical skills or knowledge in particular fields not readily available in the U.S., in addition to filling positions when there are temporary occupational shortages in the U.S.

Qualifying for an H-1B Visa

The H-1B visa allows U.S. employers to hire highly qualified foreign nationals, for a "specialty occupation," on a temporary basis. A specialty occupation is an occupation that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a baccalaureate or higher degree, or its equivalent, in the specialty. H-1B professionals include doctors, engineers, professors, researchers, accountants, health care personnel, architects and computer professionals.

A specific job offer from a U.S. company is required to obtain H-1B status, and the sponsoring employer must file a petition on behalf of the employee. The job being offered must qualify as a specialty occupation and the foreign national must meet certain requirements. To qualify, an employee may:

(1) Show the attainment of a baccalaureate or higher degree from an accredited U.S. college or university;

(2) Show the attainment of a foreign degree determined to be the equivalent of a U.S. baccalaureate or higher degree;

(3) Show that he/she holds full state licensure to practice in the occupation, if such licensure is required, in the state of intended employment; or

(4) Show that he/she has experience in the specialty equivalent to the completion of a baccalaureate or higher degree, and "recognition of expertise in the specialty through progressively responsible positions relating to the specialty."

Labor Condition Application

The U.S. Department of Labor (DOL) must certify that the employer has filed a Labor Condition Application (LCA) before an H-1B visa may be granted. The employer must state the following in the LCA:

(A) The employer will pay the H-1B employee at least the greater of (1) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or (2) the prevailing wage level for the occupational classification in the area of employment;

(B) The employment of a foreign national will not adversely affect the working conditions of workers similarly employed;

(C) There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment;

(D) The employer, at the time of filing the application:

(i) has provided notice to the bargaining representative (if any) of the employer's employees in the occupational classification and area for which nonimmigrants are sought, or

(ii) if there is no such bargaining representative, has provided notice by physical posting in conspicuous locations at the place of employment or electronic notification to employees in the occupational classification for which H-1B nonimmigrants are sought.

The employer must keep certain records available for public examination at the employer's principal place of business or worksite. These records include:

(1) A copy of the completed LCA;

(2) Documentation containing the wage rate to be paid the H-1B nonimmigrant;

(3) A full, clear explanation of the system used to set the "actual wage" the employer pays workers in the occupation for which the H-1B nonimmigrant is sought, including any periodic increases which the system may provide--e.g., memorandum summarizing the system or a copy of the employer's pay system or scale;

(4) Documentation used to establish the "prevailing wage" for the occupation; and

(5) Documentation showing that the employer satisfied the notice requirement to employees, by means of a bargaining representative or posting.

These records must be retained for one year beyond the end of the period of employment specified on the labor condition application or one year from the date the labor condition application was withdrawn.

"H-1B Depdedent Employers" and"Willful Violators"

Employers that are H-1B dependent or willful violators must make additional attestations in their LCA. An H-1B dependent employer is an employer that employs a certain proportion of H-1B employees in their full time equivalent workforce. The proportions are as follows:

(1) An employer with up to 25 full time equivalent employees with 8 or more H-1B nonimmigrant employees;

(2) An employer with at least 26 but no more that 60 full time equivalent employees with 13 or more H-1B employees;

(3) An employer with 51 or more full time equivalent employees, of which 15% or more are H-1B employees.

A "willful violator" is an employer against whom a finding of violation has been entered by the Department of Labor or Department of Justice, on or after October 21, 1998, relating to a prior LCA, and who is found to have committed a willful failure or a misrepresentation of a material fact during the five-year period preceding the filing of the new LCA.

The additional attestations required of H-1B dependent and willful violator employers are as follows:

(1) The employer did not and will not displace a U.S. worker within 90 days before and 90 days after the date of filing of any visa petition supported by the application;

(2) The employer will not place the H-1B nonimmigrant with another employer (regardless of whether or not such other employer is an H-1B-dependent employer) where -

(i) The nonimmigrant performs duties in whole or in part at one or more worksites owned, operated, or controlled by such other employer; and

(ii) There are indicia of an employment relationship between the nonimmigrant and such other employer; unless the employer has inquired of the other employer whether, within 90 days before and 90 days after the date of the placement of the H-1B nonimmigrant, that employer has displaced or intends to displace a U.S. worker.

(3) Prior to filing the LCA, the employer has taken good faith steps to recruit U.S. workers, using industry-wide standards and offering compensation that is at least as great as that required to be offered to H-1B nonimmigrants, for the job for which nonimmigrants are sought; and has offered the job to any U.S. worker who applies and is equally or better qualified for the job.

These additional conditions do not apply to an LCA used only for the employment of "exempt" H-1B nonimmigrants. Exempt nonimmigrants are H-1B workers receiving wages at an annual rate of at least $60,000 or who have attained a master's or higher degree (or its equivalent) in a specialty related to the intended employment.

Teressa Accurso Dickman
Law Offices of Teressa Accurso Dickman, P.A.
www.ImmigratingToAmerica.com

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