The H-1B nonimmigrant visa may be used to bring a worker temporarily to the United States if the employee will work in a “specialty occupation” or a professional position. The Immigration and Nationality Act of 1990, the American Competitiveness & Workforce Improvement Act of 1998, and the American Competitiveness in the 21st Century Act of 2000 made significant changes in the employer’s obligationswith respect to obtaining and maintaining the H-1B visa, the forms used to apply for the visa, and the application procedures. Be sure to consult with an attorney experienced in immigration matters to be certain that this is the appropriate visa category for your purposes.
What Does the Employer Do?
Qualify as a U.S. Employer
The employer must have a U.S. taxpayer identification number. Foreign businesses not established in the United States cannot use this visa to bring employees here.
Obtain an Approved Labor Condition Application
The employer must prepare and file a Labor Condition Application (LCA) with the regional office of the Department of Labor (DOL). The LCA is a form that must be carefully prepared and posted in two conspicuous places at the work site. It requires the employer to describe the position and salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions, and the giving of notice.
Once the LCA is approved, the employer files a petition with the Bureau of Citizenship and Immigration Services (BCIS). The employer must document that the position requires the services of a person in a “specialty occupation.” This means a person who is working in a professional position that requires a minimum of bachelor’s degree or it equivalent in a specific field related to the job.
What are the Employer’s Liabilities?
Completing the LCA is just the beginning. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees. Upon request, these records mustbe provided to DOL’s Wage and Hour Division.
If an employer does not document the wage, pay the required wage, or maintain the required records, the employer could be liable for substantial penalties, including back pay and fines of up to $35,000 per violation.The employer could even lose the right to apply for H-1B visas as well as all other immigrant and nonimmigrant visas for up to three years.
Employers are required to pay a $1,000 fee for each H-1B application and first extension, to help with the education and training of U.S. workers.
If the employer terminates the services of the employee prior to the expiration of the H-1B visa, the employer is responsible for paying the employee’s return transportation to his or her last foreign residence.
What Must a Dependent Employer Do?
A “dependent employer” is one who has employed more than the specified percentage of H-1B workers relative to the workforce, determined by the size of the employer. The dependent employer must comply with additional attestation requirements. It must attest that it has undertaken domestic recruitment and not laid off any U.S. workers before hiring an H-1B employee.
What Does the Employee Do?
The employee must prove that he or she is qualified for the specialty occupation and the specific job offered by the employer. The employee must be able to show that his or her foreign university degree is the equivalent of a U.S. degree, or that his or her work experience is equivalent to a degree.
Workers in the United States who currently hold a valid nonimmigrant visa may apply in the United States for the H-1B visa. For example, if a worker is in lawful student status (an F-1 visa), he or she may seek a change for F-1 to H-1B. This change only gives the person the ability to work in the United States for the sponsoring employer. However, the H-1B employee may change employers if the new employer files a petition on his or her behalf. If the worker needs to travel abroad, he or she will need to apply for an H-1B visa at a U.S. Consulate. Workers not in lawful status in the United States or those residing abroad must apply for an H -1B visa at a U.S. consulate.
What Are the Employee’s Liabilities?
Under current law, a person who fails to maintain status (e.g., by engaging in unauthorized employment, or by staying beyond the authorization period) may be required to depart the United States and may be ineligible to return, depending upon how long such condition existed.
How Long Can the H-1B Employee Remain in the United States?
The H-1B is a temporary visa with specific limitations on periods of stay in the United States. The initial petition may be approved for up to three years. After the initial period, three more years are available.
The employer must update or refile the LCA and must file H-1B petition extensions. After six years, the worker must spend one year outside the United States before he or she is entitled to have another H-1B visa. Many workers on H-1B visas obtain permanent resident status (the “green card”) during their initial stay in the United States. H-1B visa holders pursuing a green card may, in some cases, extend their stay beyond the six-year limit.
The H-1B employee’s spouse and unmarried children under 21 years old may be granted an H-4 visa. H-4 visa holders are not permitted to work in the United States. They may, however, attend school.
L-1 intracompany transferees
Intracompany transferees are executives, managers, and employees with specialized knowledge. Only those companies qualify as a parent, branch, subsidiary, or affiliate may petition for an L-1 intracompany transferee visa. If the employee is qualified as a manager or executive, he or she may remain in the United States for up to seven years. If the employee is classified in the specialized knowledge category, he or she may stay up to five years.
A transferee’s spouse or unmarried children under 21 years old may be granted L-2 visas. Spouses of L-1 visa holders may apply for work authorization. All other L-2 visa holders are not permitted to work but may attend to school. A key qualification for all employees is continuous employment abroad with a qualifying foreign employer for one year within the three years preceding the time of theemployee’s application for admission into the United States.
H-2B temporary nonagricultural workers
A labor certification is necessary before the employer may proceed with the nonimmigrant visa petition. Two one-year extensions of stay may be granted to H-2B temporary workers. Each new petition for extension must be accompanied by a new labor certification.