Richard Fleischer: Ohio Attorney, H-1 B Visa, Specialty Occupation, Professionals Visas

H-1B Article

This article will review the necessary procedures to obtain H-1B work authorization for a foreign worker. The H-1B process involves two steps. First, the employer submits a Labor Condition Application (LCA) to the Department of Labor (DOL) for certification. Second, the employer files a petition with the U.S. Citizenship & Immigration Services (USCIS) to obtain H-1B classification for the alien. If the alien is already in the U.S. in another status, an application for change of status is filed simultaneously with the petition. If the alien is in the U.S. in H-1B status working for another employer, a change of employer/extension of stay application is filed simultaneously with the petition.

Filing the LCA
By filing the LCA with DOL, the company is attesting to the following:
1. That for the entire period of authorized employment (typically three years), the company will pay all H-1B alien(s) who have similar experience and qualifications for the specific position set forth in the LCA at least the higher of:
  1. the actual wage level paid by the company to all other individuals with similar experience and qualifications for the specific position in question;or
  2. the prevailing wage level for that specific occupational classification by all employers in the geographic area of intended employment. We will assist you in determining the prevailing wage for the position. DOL will accept a State Employment Service Agency (SESA) wage determination as per se correct and will not investigate a prevailing wage complaint where there is such a determination.
2. That for the entire period of authorized employment, the employment of the H-1B alien will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
3. That on the date the LCA is signed and submitted, there was not a strike, lockout, or work stoppage in the course of a labor dispute in the relevant occupation at the place of employment, and if such a strike occurs, the employer will notify DOL within three days.
4. That on or before the date of the LCA, notice of the application was posted in two conspicuous locations in the employer's establishment. If a collective bargaining agreement applies to the position, notice must be provided to the collective bargaining representative in lieu of posting.
  
  In addition, copy of the LCA certified by DOL must also be provided directly to the alien prior to beginning the H-1B employment.
  
  Please note that there are additional attestations and requirements that "H-1B dependent" employers must comply with. An "H-1B dependent" employer is generally one that has a high percentage of H-1B employees. Please let us know immediately if 15% or more of the workforce at your company are H-1B employees.
  
  In addition, note that if the company has onsite contract workers who are employed by an "H-1B dependent" employer, the employer of these contractors may request assurance from your company that your company has not laid off workers 90 days prior to the worker being on your company's worksite, and your company does not intend to lay off workers within 90 days after the worker is on your worksite. Thus, lay-offs at your company may effect your ability to keep contract employees of H-1B dependent employers on your worksite.
  
  The LCA procedure is primarily complaint-driven; that is, an investigation into the accuracy of the LCA will normally occur only if a complaint is filed by an aggrieved party. If a complaint is filed, the DOL Wage and Hour Administrator will investigate the complaint. In the event of a violation of the LCA, the Administrator may (1) impose a $1,000 fine per violation; (2) bar the employer from obtaining future visas for a period of at least one year; and (3) order the employer to provide for payment of back wages. Material misrepresentation on the LCA can also subject the signer to penalties for perjury including fines and incarceration.

Satisfying Documentation Requirements
Within one working day of the filing of the LCA, upon request by any person, the company must make available for inspection certain documentation about the LCA. They must prepare a "Public Access" folder for this purpose. This folder must be retained for one year beyond the end of the period of employment specified on the LCA.

In addition to the public access documentation, the company must maintain certain records for DOL to review in the event of a complaint. The company must maintain payroll records for the alien and any other individuals with experience and qualifications similar to those of the alien's who are in the same position at the place of employment. The company must maintain the payroll records for a period of three years from the date of the creation of the records.

The H-1B Petition
DOL will certify the LCA immediately via the computer. Once the LCA has been certified, we will complete the forms, and send them to you to sign. When you return them to me, I will file them with USCIS. The USCIS filing fee for the petition if $185.00. The fee may not be paid by the alien. The petition will consist of the Form I-129, a company letter of support outlining the proposed position duties and requirements, and supporting documentation including information about the company. It typically takes three to six months for USCIS to approve the petition. However, for an additional $1,000.00 paid to USCIS, Premium Processing will be completed within 15 days.

H-1B nonimmigrant visa classification has two major requirements: (1) that the position to be filled is a "specialty occupation", i.e., an occupation requiring the theoretical and practical application of a highly specialized body of knowledge, and for which attainment of a U.S. Bachelor's Degree or higher is a minimum requirement for entry into the occupation; and (2) that the alien possesses a U.S. Bachelor's Degree or higher in the specialized field. (Note that if the individual does not have a degree, or possess a foreign degree, an education and/or experience evaluation will be required to determine the equivalence to a U.S. degree.)

If the petition is requesting a change of employer for an individual already in H classification, the employee may begin working for the new employer upon filing of the new employer's H petition if the employee was lawfully admitted into the U.S., has not worked without authorization since last entry, and the petition is filed before expiration of the employee's authorized stay.

For petitions requesting a change of status from another nonimmigrant classification, the company may begin to employ the alien in H-1B classification once the petition is approved. If the alien is outside the U.S., he or she will need to obtain an H-1B visa stamp at a U.S. embassy or consular post abroad in order to enter the United States. Similarly, if the alien is in the U.S., but then travels internationally, he or she will likely need to obtain an H-1B visa stamp prior to reentering the United States. Please contact us if you would like assistance with the H-1B visa stamp application.

Under current regulations, in the event the company dismisses the alien from employment before the end of the period of authorized admission, the company is expected to accept liability for the reasonable costs of return transportation to his or her residence abroad.

The LCA, H-1B petition, and prevailing wage information are valid for three years. The company should docket 30 months from the date of certification of the LCA to decide if the company would like to obtain an extension of the LCA and H-1B petition for an additional three years.

Please notify us regarding any changes in wages, working conditions, job site, or characteristics of the employment position, or if the alien changes jobs. Likewise, please notify us if there are any changes in the corporate structure or ownership of the company or if any kind of labor dispute occurs. Such changes can affect both the LCA and the H-1B petition, which both refer to a specific job and to a specific person.

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Richard I. Fleischer & Associates
917 Main Street - Cincinnati, Ohio 45202-1314 USA
Phone: 513.977.4209 - Fax: 513.977.4238

fleischer@immigrate2usa.com

Disclaimer

Nothing at this site should be construed as legal advise for any individual case or situation. This information is general content only, and should not be relied upon for any specific information. For specific legal advise consult an experienced immigration attorney.

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