The Requirements for
U.S. Employers to Hire
1. To Hire a Foreign Worker on an H-1B Visa
Only U.S. employer can file a petition for an H-1B worker. The employer must comply with prevailing wage requirement, agree not to displace American workers, agree not to replace a laid-off worker with an H-1B worker for a certain period of time, and agree not to employ the H-1B workers during a strike or lock-out, among other attestations.
The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge, and a bachelor's degree or the equivalent in the specific specialty, e.g., engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties, etc.
An H-1B certification is valid for the period of employment indicated on the Labor Condition Application (LCA), specifically the Form ETA 9035, for up to three years. However, a foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain foreign workers with Labor Certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments or three-year increments.
To hire a foreign worker on an H-1B visa, the job must be a professional position that requires, at a minimum, a bachelor's degree in the field of specialization. The occupation for which the H-1B classification is sought must also normally require a bachelor's degree as a minimum for entry into the occupation.
2 The Requirements for U.S. Employers to Hire H-1B Workers
The employer must pay the minimum prevailing wage, as determined by State Employment Agency rules or other approved standard guidelines, and must confirm the following six conditions:
1) The employer will pay the H-1B employee the higher of the actual wage rate that it pays to all other individuals with similar experience and qualifications, or the prevailing wage level for the occupation in the metropolitan statistical area of employment;
2) Employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment;
3) There is no current strike or lockout involving the prospective H-1B worker's position at the workplace;
4) The employer will provide notice of filing of the Labor Condition Application to the employee collective bargaining representative for the H-1B occupation or, lacking such a representative, will conspicuously post such notice at the work site on or within 30 days of filing the Labor Condition Application;
5) The employer will maintain documents for public examination
6) The employer must agree to pay the alien the reasonable cost of transportation to return to his or her home country, if the employer terminates employment prior to the end of the authorized employment period.
3. The H-1B Requirement of Employer-Employee Relationship
The H-1B visa regulations require that a U.S. employer should establish that it has an employer-employee relations with respect to the H-1B beneficiary, as indicated by the fact that "it may hire, pay, fire, supervise or otherwise control the work of any such alien employee."
USCIS clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. In addition to demonstrating that a valid employer-employee relationship will exist between the U.S. petitioner and the alien beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:
- establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
- demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and
- filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.
For the H-1B visa application requirement of employer-employee relationship, USCIS will evaluate whether the petitioner has the “right to control“ the beneficiary's employment, such as when, where and how the H-1B alien beneficiary performs the job. The factors to be considered include:
1) the manner and extent to which the petitioner actually supervises the H-1B alien beneficiary;
2) the petitioner's right to control the alien beneficiary's daily work and work product; and
3) the petitioner's right to hire, pay, and fire the beneficiary.
USCIS adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.
The H-1B petitioners should provide detailed documentation of the employment relationship. Particularly in cases in which the beneficiary will be assigned to third-party or client worksites, H-1B employers should carefully document that it, and the employer should have the right to supervise, direct, and review the H-1B visa holder's work, and terminate the employment. A detailed itinerary providing information on the multiple work locations should also be attached with the H-1B visa application documents.
4. Employer's Obligations to Workers Who Have H-1B Visas
1) Employer's Obligation to Pay the H-1B Worker the Prevailing Wage: The employer is also obligated to pay the H-1B worker the "prevailing wage." The prevailing wage is the wage that is paid to employees in the H-1B worker's position and area of employment. The prevailing wage for the same position can differ from location to location. For example, the prevailing wage for a cardiologist working in the metropolitan area of Los Angeles, California will be very different from the prevailing wage for a cardiologist working in the rural area of El Paso, Texas.
It is critical that the employer pay the H-1B worker the correct prevailing wage during the entire time of the worker's employment. If the employer fails to meet this obligation, the employer will be required to pay the worker back wages, and can also incur other significant penalties and fines.
2) Employer's Obligation to Inform USCIS of Changes in Employment: Employers are under an ongoing obligation to inform USCIS of any "material changes" in the H-1B worker's employment. Unfortunately, immigration law does not define a "material change." Any number of changes could be seen as material, such as changes in the worker's job duties, job location, or position in the company's hierarchy. Employers should use their best judgment and consult an immigration attorney in deciding whether or not a change is "material."
If a material change occurs, the employer must inform USCIS by filing an amended I-129 petition. The amended I-129 should contain all of the documents that the original I-129 contained, as well as an explanation of the material change and the reason for the change.
3) Employer's Obligation to Treat the H-1B Worker Fairly:U.S. labor and immigration laws prohibit employers from discriminating against workers on account of the workers' national origin. An H-1B worker must be treated the same as all of the employer's U.S. workers. The employer must provide the H-1B worker with the same benefits (stock options, sick leave, insurance, and so forth) as those provided to U.S. workers, and H-1B workers cannot be passed over for promotions or other rewards on account of their H-1B status.
4) Employer's Obligation to Pay for the H-1B Worker's Return Trip Home: Immigration law requires the employer to pay for the reasonable costs of transporting the H-1B worker to his or her home country if the employer dismisses the worker before his or her H-1B status expires. However, if the worker quits the job before his or her status ends, the employer is not responsible for the costs of the worker's return trip home.
5. The Return Transportation Costs, Benching Rule, and Departure Penalties Prohibited
The employer must pay the return transportation costs of the H-1B employee, if the employee is dismissed prior to completion of the approved H-1B term. The employer needs not to pay if the employee voluntarily quits. In any case, the employee can file a complaint if the employer fails to pay transportation home. In practice, however, the foreign national often looks for another job, and obtains a new H-1B or other visa status in the U.S., so that the return costs issue has not been a big issue.
If H-1B employees are "benched" due to the employer's business reasons, such as the lack of available work, then they must still be paid for the full hours specified on the H-1B petition. If an employee is absent based on issues not work related, such as personal or health reasons, then the above provision does not apply.
It is illegal to require an H-1B employee to pay a penalty merely for leaving the employer. However, it is permissible to require an employee to reimburse the employer for actual expenditures incurred by the employer, if the employee leaves the employer within certain timeframes agreed to by the parties. Examples where the employer may require reimbursement include airline tickets to enter the U.S. for the H-1B employee and family members, tuition for attending seminars while on the job, hotel costs while locating a home or rental property, etc.
6. The Employer's Responsibilities for the H-1B Application
1) The employer shall submit a completed Labor Condition Application (LCA) on Form ETA 9035 in the manner prescribed by the regulations. By completing and signing the LCA, the employer agrees to several attestations regarding an employer's responsibilities, including the wages, working conditions, and benefits to be provided to the H-1B nonimmigrant; these attestations are specifically identified and incorporated in the LCA.
The LCA contains additional attestations for certain H-1B-dependent employers and employers found to have willfully violated the H-1B program requirements. These attestations impose additional obligations to recruit U.S. workers, to offer positions to U.S. workers who are equally or better qualified than the H-1B nonimmigrant, and to avoid the displacement of U.S. workers. These additional attestations are specifically identified and incorporated by reference in the LCA. If the LCA is approved, a copy of the submitted LCA will be returned to the employer.
2) The employer shall make the LCA and necessary supporting documentation available for public examination, at the employer's principal place of business in the U.S. or the place of employment, within one working day after the date on which the LCA is filed.
3) The employer may then submit a copy of the approved LCA to USCIS with a completed petition (USCIS Form I-129) requesting H-1B classification.
4) The employer shall not allow the nonimmigrant worker to begin work until USCIS grants the worker authorization to work in the U.S. for that employer or, in the case of a nonimmigrant who is already in H-1B status and is changing employment, to another H-1B employer until the new employer files a petition supported by a certified LCA.
5) The employer shall maintain documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged. The employer shall also maintain such documentation at its principal place of business in the U.S., and shall make such documentation available to DOL for inspection and copying upon request.
7. How to Use the DOL Wage Worksheet to Decide the Wage Level Properly?
The petitioner preparinng the H-1B petition should use the DOL wage worksheet in the "Prevailing Wage Determination Policy Guidance" to assess the proper wage level. If the DOL found that the wage worksheet had been properly completed, the employer's H-1B petition should contain the correct wage.
To use the wage worksheet when making an independent wage level determination of an LCA in an H-1B petition. An H-1B employer should be prepared to defend the wage level decisions. The petitioner should carefully reviewe the factors listed for proper wage level decisions. This is done to protect both the employer and the H-1B workers.
An H-1B beneficiary should be properly classified under an O*Net category. The DOL will reviewe the wage level claimed by the H-1B petitioner, by applying the Prevailing Wage Determination Policy Guidance. This wage guidance sets forth a system for comparing the requirements of the employer's job offer to the standard requirements for similar occupations on O*NET, which is a DOL-sponsored program that serves as the primary source of occupational information in the United States.
All job occupations start with a level I wage for an entry-level position. Where appropriate, points are added to the DOL wage worksheet to determine whether a higher wage level is required. There are 4 steps in determining when a wage level should be increased. The employer's offered job is compared to the O*NET description for that type of occupation. If there are special skills or requirements in the employer's job description not encompassed by the generic O*NET job description, then the wage level may be increased. Otherwise, the wage level should remain at level I.
The DOL will go through the education and experience components of the wage level analysis. Even if certain parts of the job are above level I, that would not automatically put the job at level II. The purpose of the wage worksheet is to go through the factors in the checklist and use the definitions of each level as a guideline. Therefore, a wage worksheet is only as good as the information provided by the employer. The employer should provide accurate information in the worksheet.
8. How to File Labor Condition Application (LCA) before Filing H-1B Application
The Labor Condition Application (LCA) is an application filed by U.S. employers on behalf of workers applying for work authorization for the non-immigrant statuses H-1B. The application is submitted to and needs to be approved by the United States Department of Labor Employment's Office of Foreign Labor Certification (OFLC). The form used to submit the application is ETA Form 9035.
The Labor Condition Application (LCA) ETA Form 9035 is a document that a prospective H-1B employer files when it seeks to employ nonimmigrant workers at a specific job occupation in an area of intended employment for not more than three years. In this document, the employer attests to standards to which it will adhere. It must be certified by the authorized DOL official before it can be used.
U.S. employers must file using the electronic system, except in two limited circumstances. Employers with physical disabilities or lack of Internet access prohibiting them from filing electronic applications may submit a written request for special permission to file their LCAs by U.S. mail. The employer's written request must establish the need to file by mail, and include an explanation of the physical disability or lack of Internet access. The employer should be prepared to submit supporting documentation if requested by the OFLC. The OFLC Administrator must approve the request before the employer may file by mail.
As part of the technology modernization initiative, the Foreign Labor Application Gateway (FLAG) System (https://flag.dol.gov/) has been developed to replace the legacy iCERT System, improve customer service, and modernize the administration of foreign labor certification programs through the Employment and Training Administration's Office of Foreign Labor Certification (OFLC).
OFLC is making this public service announcement to alert employers and other interested stakeholders about implementation of its new FLAG System for the Labor Condition Application (LCA) programs covering the H-1B and E-3 visa classifications. Beginning September 16, 2019, the FLAG System's LCA Program Module will be enabled and stakeholders will be able to begin preparing H-1B, H-1B1, and E-3 applications using the Form ETA-9035E.
OFLC has created instructional videos to help educate the stakeholder community on how to create and manage a FLAG System account and prepare the Form ETA-9035E. To obtain more information and view these instructional videos, please visit the LCA Program page on the FLAG System.
Employers must submit a Labor Condition Application (Form ETA-9035/ 9035E) to the Department of Labor electronically through the FLAG system attesting to compliance with the requirements of the H-1B, H-1B1 or E-3 program. LCAs must not be submitted more than 6 months before the beginning date of the period of employment. The two exceptions to electronic filing are employers with physical disabilities or those who lack Internet access and cannot electronically file the Form ETA-9035E. An employer must petition the Administrator of OFLC for prior special permission to file an LCA by mail on the Form ETA-9035.
9. The H-1B Employer's Public Disclosure Record
The H-1B employer must allow public examination of a copy of the H-1B worker's LCA, and other necessary supporting documentation regarding the H-1B worker and other similarly situated employees. Specifically, the employer must create and maintain a public access file to document compliance in each H-1B case. This public disclosure record must include:
1) Copy of the LCA, with employer's original signature and cover pages;
2) Documentation of the wage to be paid to the H-1B employee, such as job offer letter;
3) Explanation of the system used to set the actual wage;
4) Copy of prevailing wage determination from SWA, or description of survey or other source used;
5) Copy of notice to union (if applicable) or postings;
6) Summary of benefits plan offered to the H-1B employee, showing that it is the same as that offered to similarly employed U.S. workers.
10. Establishing a Qualifying Employer-Employee Relationship for H-1B Application
Some H-1B visa petitions filed with United States Citizenship and Immigration Services (USCIS) involve employment in the Employer-Vendor-Client (EVC) relationship. In the EVC H-1B visa petitions, the H1B employee is placed at the worksite of a company other than the H-1B petitioning employer, as a result of contracts through vendors.
In recent years, this type of H-1B petition has become more and more challenging, and USCIS may check the importance of end-client letters in these H-1B petition cases involving an EVC employment relationship. USCIS believes that an H-1B petition filed under an EVC relationship must demonstrate that there is an actual “employer-employee relationship” between the petitioning employer and the H-1B worker. The USCIS interprets this to mean that the H-1B employer is required to maintain the “right to control” the daily work of the H-1B employee, even when the alien worker is working remotely.
The U.S. employer should establish the control over H-1B beneficiary's work or service. Also, a letter may not be required from the end client if petitioner can demonstrate the employer-employee relationship. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required.
The petitioner may submit a combination of any documents to establish the evidence that the required relationship will exist. USCIS adjudicators will review and weigh all the evidence submitted to determine whether the petitioner have met the burden in establishing that a qualifying employer-employee relationship will exist.
11. How to Maximize the Chances of Receiving H-1B Petition Approvals for IT Consultants?
The IT consulting firms should provide strong evidence to show that they have specific H-1B level work for their alien employees at the time of H-1B application filing. If an alien consultant will be working on an in-house project, the USCIS expects to be provided with detailed information on the project, including its technical specifications, the end-product, and a business plan or market analysis, such as target market, expected revenue stream, and anticipated length of the project.
If the project will not earn a revenue stream in a relatively short period of time, the firm should be prepared to provide evidence that the H-1B employee’s salary can be paid by other means.
If a consultant will be placed at the worksite of an end client, this location should be stated in the H-1B petition and in the certified labor condition application (LCA) that accompanies the petition.
The petitioner should also provide strong evidence of the specific project that is immediately available to the alien employee at the time of filing the petition or the requested start date. The contracts, purchase orders, end client and vendor letters, and other supporting documentation should demonstrate to the USCIS that there is an H-1B position available to the alien employee and that the employee’s services are needed for the entire duration of time requested in the H-1B petition.
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