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 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.
4. 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.
5.
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.
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