1. To Hire a Foreign Worker on an H-1B Visa
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.
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.
Return
Transportation Costs
The employer must pay the return transportation costs of the H1B employee if the
employee is dismissed prior to completion of the approved H1B term. The employer
need not pay if the employee voluntarily quits. The Bureau of Citizenship and Immigration Services
(USCIS)
has stated in an
informal decision that an employer can deduct the cost of the round trip
transportation from the worker's paycheck if there is a voluntary agreement
between the parties to this effect and the deductions are not subject to
interest or any form of surcharge. 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 H1B
or other visa status in the U.S., so that the return costs issue has not been a
big issue in negotiations.
3. Benching Rule
If H1B 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 H1B 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.
4. Departure Penalties Prohibited
It is illegal to require an H1B 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 H1B employee and family members, tuition for attending seminars while on
the job, hotel costs while locating a home or rental property, etc.
5. Each Employer's Responsibilities
- 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 by reference 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.
- 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.
- 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.
- 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.
- 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.
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