Below are the necessary procedures to obtain H-1B work authorization for a foreign worker. After the employer submits a Labor Condition Application and files a petition 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.
I. 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:
- the actual wage level paid by the company to all other individuals with similar experience and qualifications for the specific position in question OR
- 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, a 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 affect 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.
II. 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.
III. The H-1B Petition
DOL will certify the LCA immediately via the computer. Once the LCA has been certified, we will complete the H-1b forms, and send them to you to sign. When you return them to me, I will file the H-1b application with USCIS. The USCIS filing fee for the H-1b petition is $460.00. 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 H-1b petition. However, for an additional $1,225.00 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 H-1B petition is requesting a change of employer for an individual already in H-1B classification, the employee may begin working for the new employer upon filing of the new employer’s H-1B 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.
IV. H-1B Cap Limit
Congress created an annual cap of 65,000 H-1B visas available per fiscal year in 1990. Under the H-1B Visa Reform Act of 2004, USCIS determined that another 20,000 new H-1B visa will be available solely for aliens who have a received a master’s or higher degree from a U.S. institution of higher education. The USCIS will exempt the first 20,000 petitions for H-1B workers that meet the above qualifications from the mandated cap of 65,000. After the 20,000 slots are filled, the USCIS will apply petitions for H-1B workers with a master’s degree or higher degree to the original 65,000 cap.
H-1B visas will be adjudicated by USCIS on a first in, first out basis. USCIS will use projections that indicate the number of H-1B petitions necessary to reach the congressionally mandated cap. Once the number of H-1B petitions received nears the projected number, USCIS will issue a notification to the public of the “final receipt date.” The final receipt date is the date USCIS will receive the necessary number of H-1B petitions to meet the cap. Any H-1B applications received after this date will be forwarded to the next fiscal year.
V. Filing Fees for H-1B Application
For any fiscal year, the Form I-129 must be filed with the following fees:
1. The base filing fee of $460.00;
2. The applicable American Competitiveness and Workforce Improvement Act of 1998 (AWCIA) fees which includes:
- $1,5000.00 for employers with 26 or more U.S. full time equivalent employees, including employees at any affiliate or subsidiary of such employer OR
- $750.00 for employers with 25 or less U.S. full time equivalent employees, including employees at any affiliate or subsidiary of such employer AND
3 Fraud and Prevention and Detection Fee of $500.00 for the following H-1B applications:
- Employer seeking an alien worker’s initial grant of H-1B or L nonimmigrant classification
- Employer seeking to hire an existing H-1B or L worker currently employed by another employer
4. The Fraud and Prevention and Detection Fee does NOT apply to:
- Employers who seek to extend a current H-1B or L alien’s status where such an extension does not involve a change of employers
- Employers who are seeking H-1B1, Chile-Singapore Free Trade Act nonimmigrant
- Dependents of H-1B or L principal beneficiaries
5. The Consolidated Appropriations Act, 2016 (Public Law 114-113), signed into law by President Obama on December 18, 2015, increases fees for certain H-1B and L-1 petitioners. These petitioners must submit an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions postmarked on or after December 18, 2015.
The additional fees apply to petitioners who employ 50 or more employees in the United States, with more than 50 percent of those employees in H-1B or L (including L-1A and L-1B) nonimmigrant status. These petitioners must submit the additional fees with an H-1B or L-1 petition filed:
- Initially to grant status to a nonimmigrant described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) of the Immigration and Nationality Act; or
- To obtain authorization for a nonimmigrant in such status to change employers.
This fee is in addition to the base processing fee, Fraud Prevention and Detection Fee, American Competitiveness and Workforce Improvement Act of 1998 fee (when required), as well as the premium processing fee, if applicable. Public Law 114-113 fees will remain effective through September 30, 2025.
VI. American Competitiveness in the Twenty-First Century Act (AC-21)
AC-21 is a valuable tool for H-1B workers wishing to change employers. Under AC-21, workers with a valid H-1B petition are authorized to accept new H-1B employment upon the filing of a new H-1Bpetition. AC-21 provides “portability” authorization until the new H-1B petition is adjudicated, therefore allowing workers to keep their H-1B status when working for an employer other than the one listed on their valid H-1B visa. This means workers are not required to wait until their new H-1B petition is approved before switching jobs.
This position is affirmed by a telegram from the Department of State, which states:
INS regulations do not provide for the automatic revocation of an H-1(B) petition when the employee leaves his/her employer. The petition remains valid until its expiration date or its revocation on notice from the INS pursuant to receipt of information (usually from the employer) that the alien is no longer employed (which occurs rarely). Therefore, in most cases the continued validity of the petition will support “portability” of status to a new employer.
An H-1B petition remains valid until its validity period expires or until the H-1B petition is revoked by the USCIS. As a result, intervening H-1B employment with another H-1B employer will not invalidate the H-1B petition approval and the alien may return to work for the petitioner without the filing of a new or amended H-1B petition. Remember that when an H-1B employer communicates to the USCIS that an H-1B employee has been terminated, USCIS will take steps to revoke the H-1B petition. In these circumstances, the H-1B employer can no longer use the revoked H-1B petition to “rehire” the H-1B employee. The situation is different when the H-1B employee is fired or terminated and the employment relationship no longer continues. In that instance the H-1B worker is no longer in H-1B status from the moment of termination.
Cap Strategy for Porting between Cap-Exempt and Cap-Subject Employers
Apprehension over H-1B cap applicability arises when an H-1B worker wishes to port from a H-1B cap-exempt employer to an H-1B cap-subject employer under AC-21. The Immigration & Nationality Act (INA) is unclear on whether an H-1B employee may begin his new H-1B employment under AC-21 when the H-1B cap has been met and the new employer has no H-1B numbers immediately available. There is ample evidence to show, however, that even in a period in which the H-1B cap has been met and no H-1B numbers are available, an H-1B worker may still port to his new employment upon filing of the petition. He may also continue to be lawfully employed by the H-1B cap-subject employer under AC-21 provisions until new H-1B cap numbers become available.
In a 2005 letter from Efren Hernandez, Chief of Business and Trade Services at USCIS, he affirms this interpretation by stating:
[A]n H-1B worker…whose entire period of employment authorization under 214(n) will be covered by a valid LCA and for whom there is no “cap gap,” who meets the requirements of INA 214(n), may commence employment under that section with a new or concurrent employer notwithstanding the fact that the prior H-1B employment on which portability is based is cap exempt employment and the new or concurrent employment is cap subject employment.
Therefore, AC-21 portability continues H-1B employment authorization until H-1B status is available (rather than just until the H-1B petition is approved). Workers should be warned, however, that if they are to switch from an H-1B cap-exempt employer to an H-1B cap-subject employer and use AC-21 portability employment authorization until new H-1B cap numbers are available and do not in fact receive an H-1B cap number (i.e. when the cap is reached on the first day of filing and not all first day filers receive a number), then those H-1B employees will lose H-1B work authorization under INA 214(n).
Under AC-21, certain employers are exempt from the H-1B cap:
- Individuals employed at higher educational institutions and their related or affiliated non-profit entities
- Individuals employed by nonprofit research organizations or governmental research organizations
- J-1 nonimmigrant physicians who received a Conrad waiver of the two-year foreign residence requirement based on sponsorship by a state health department.
H-1B Fees Should be paid be the H-1b Petitioning Employer
An H-1B petition must be accompanied by standard filing fee and the additional special H-1B education and training fee in a single remittance (payment of the total sum at the same time). 20 C.F.R. 655.731(c)(10)(ii) is clear in stating that the Training fee is to be paid by the employer or a third party – not by the employee. It is not to be reimbursed in part or whole by the employee.
Some employers are exempt from the H-1B fee even if the employer is filing the H-1B petition for new H-1B employment, concurrent H-1B employment, sequential H-1B employment, or the first extension of stay. These employers include:
- Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, or related or affiliated nonprofit entities; and
- Nonprofit or governmental research organizations.
In a memo dated June 6, 2006, Michael Aytes, Associate Director of Domestic Operations at USCIS, defined “related or affiliated” nonprofit entities as:
A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary.
Employers who are exempt from the H-1B training and education fee are subject to the anti-fraud fee.
VII. H-1B Portability & Traveling Outside the US
While a new petition is pending, an H-1B worker will not have an H-1B visa annotated with the new employer’s name, nor an approval notice of the H-1B petition for the new H-1B employer, one of which would usually be required for admission to the US. However, an H-1B worker covered by the portability provision is allowed to travel, provided certain documentation is presented.
The Department of State affirmed that H-1Bs may travel outside the US during the period following their acceptance of new employment but before the petition is adjudicated:
The service considers them admissible without a new visa during the period of validity of the original petition plus ten days, provided the alien meets the following requirements:
- The applicant is otherwise admissible;
- S/he has a valid passport and visa (even if it is the original visa with the prior employer’s name.)
- S/he has the prior form I-94 or a copy thereof or a form I-797 showing the original petition’s validity dates; and
- S/he has a dated filing receipt or other evidence that a new petition was filed in a timely fashion.
Therefore, an H-1B worker traveling abroad will need a new H-1B visa only if the original H-1B visa has expired. If both the prior H-1B visa and prior H-1B petition have expired, the applicant would not be eligible for a new H-1B visa until the new H-1B petition has been approved.