The H-1B Visa: Understanding The Employer's Responsibilities

Sunday, May 1, 2005 - 00:00

The situation is probably familiar: The company is ready to expand, or has a need in a particular "professional" or "specialty" area.A prospective employee is selected.This individual is perfectly suited for the position, but he or she will need the company to file a petition on his or her behalf to obtain an H-1B visa (H-1B), or perhaps file a petition to transfer an already existing H-1B.The company, acting through its human resources professionals, agrees to help with the H-1B process.

So What Exactly Does That Mean?

The H-1B visa is available to those aliens in "specialty occupations" for which a bachelor's degree or higher is typically the minimum requirement for the position.At present, the United States Citizenship and Immigration Service (USCIS) is enforcing a cap of 65,000 newly filed H-1B visas per fiscal year (plus an additional 20,000 under the newly created Master's Exemption), though after certain allotments for Chilean and Singaporean nationals are deducted, the number of generally available visas is 58,200.The H-1B is initially approved for a period of three years, and typically can be renewed for an additional three years.

The ability of the employer to hire H-1B employees can be critical to the development and growth of U.S. businesses.Putting aside the issues related to the shortage of available H-1Bs, it is important for employers to understand the obligations and responsibilities related to filing an H-1B petition.In many situations, prospective employees are very willing to guide the process, and may even suggest that their personal attorney can prepare the forms for the employer's signature.While this may be a convenient proposition, it does not necessarily ensure that the employer's interests are being protected.

Ultimately, the H-1B petition "belongs" to the employer - the hiring employer is listed as the "petitioner," while the prospective employee is the "beneficiary" of the petition - and as such, there are obligations and responsibilities to consider.

The H-1B Is "Employer Specific"

Many times, employers and employees forget that an H-1B approval provides authorization for the beneficiary (employee) to work only for the petitioner (employer) who filed the petition on his or her behalf.In order for an individual with an H-1B to leave that petitioner and work for another U.S. employer, this "new" employer must actually file an H-1B petition on behalf of the prospective employee.

The American Competitiveness in the 21st Century Act (AC21) provides that H-1Bs can in fact be "portable."Thus, individuals are not necessarily tied to their original petitioning employer.However, AC21 requires that before an H-1B employee can begin employment with a new employer, that employer must file an H-1B petition with USCIS which indicates its request to change employers.

In many situations, employees are inappropriately permitted to begin employment with the new employer before the petition is filed.To the extent that the employee starts work prior to this filing, he or she is jeopardizing his or her lawful presence in the United States, and is essentially working without valid authorization.From the employer's standpoint, if the employee is permitted to work prior to filing, there may be potential exposure under the Immigration Reform and Control Act (IRCA), which requires that employers verify the employment eligibility of all individuals hired, through completion of Form I-9.

What Are You Signing?

Filing an H-1B petition, at first glance, can appear to be a complicated proposition.In addition to those forms which are filed with USCIS, the employer must also complete and sign the Labor Condition Application (LCA), which is filed directly (and certified) with the Department of Labor (DOL).

The LCA

This form is filed with the DOL at the outset of the process.A copy of the LCA, certified by DOL and signed by the employer, must accompany the H-1B petition upon filing with USCIS.So what exactly does the LCA address?

  • Prevailing Wage- The primary focus of the LCA is the prevailing wage for the position at issue.In order to obtain certification of the LCA from DOL, the employer must attest that it will pay either 100% of the prevailing wage for the position, or the actual wage, whichever is higher.The prevailing wage level for the position is determined by using DOL's wage survey, or by using another wage survey deemed acceptable by DOL.Failure to pay the wage indicated in the LCA could subject the employer to penalties under Federal law.
  • Geographic Location- The prevailing wage for the position at issue must be based on the wages for that position as specified for the county and state of employment.Once this information is provided to DOL and USCIS, the employee must work in the work location (or locations) specified on the LCA.Permanent relocation outside of the work location(s) provided in the LCA will require that a new LCA be filed with DOL.
  • Occupational Classification- Similar to the geographic issue, an employer is required to provide information related to the occupational classification of an individual for whom the LCA is filed.While an employer is not required to file a new LCA based on changes in responsibilities or duties that are part of the natural progression for the position, if the change will place the individual in a new occupational classification, a new LCA must be filed with DOL.
  • Attestations- In order to obtain certification of an LCA from DOL, the employer must make certain attestations regarding the conditions surrounding the hire of an H-1B employee.In addition to the prevailing wage attestation, the employer must also attest:

- that the employee will be offered benefits, and eligibility for benefits, on the same basis as are offered to U.S. workers;

- that the employment of H-1B employees in the position will not adversely affect the working conditions of workers similarly employed;

- that on the date that the LCA is signed and submitted, no strike, lockout or work stoppage exists related to the position;

- that as of the date of filing, notice of the LCA has been provided to all workers in the position;

- that the H-1B employee will be provided a copy of the certified LCA if requested.

  • Notice- Notice of the LCA filing must be provided to all workers in the position through their bargaining representative.Where no such representative exists, notice can be provided through physical posting in conspicuous locations where the H-1B employee will work, or via electronic notification to employees in the position.Notice must be posted within 30 days before the LCA is filed, and such must remain posted for a total of 10 days.
  • Public Access File- As part of this process, employers are required to maintain a public access file, which must be made available to all interested parties.This file generally must contain:

- a copy of the LCA;

- documentation which provides the wage rate to be paid to H-1B employees;

- a clear explanation of the system used to set the actual wage paid in the position;

- a copy of the documentation used to establish the prevailing wage; and

- a summary of the benefits offered to U.S. workers in the same position.

Employers are generally required to maintain all records for a period of one year beyond the LCA period.

Form I-129 and Supplements

Form I-129, Petition for Non-Immigrant Worker, the H Classification Supplement, and the H-1B Data Collection Filing Fee Exemption Supplements are filed with USCIS, along with all required supporting documentation.

These forms also require the careful attention of petitioning employers.Similar to the LCA, Form I-129 and supplements require that all information provided regarding the employer, the employee, and the position be attested to under penalty of perjury.

Form I-129

Form I-129 requests employer related information which includes a description of the business, its location, tax identification number, year of the establishment, current number of employees, plus the gross and net annual income.The financial information is requested to ensure, among other things, that the company is able to pay the proffered wage to the employee.

H Classification SupplementTo Form I-129

In addition to seeking all information related to the prospective employee's previous periods of stay in the United States, this form also requires that the employer provide a detailed description of the proposed duties, and also a description of the individual's present occupation and a summary of previous work experience.

Furthermore, the employer is also required to attest:

1. That it agrees to the terms of the LCA for the individual's authorized period in H-1B status; and

2. That it will be liable for the reasonable cost of return transportation of the alien abroad if the alien is dismissed from employment by the employer before the end of the period of authorized stay.

With regard to the I-129, employers must also be aware that material changes to the job duties and the job location will require that a new I-129 be filed with USCIS.Furthermore, the employer will be required, both on these forms and in the required support letter, to attest to the minimum requirements for the position, and to its belief that the prospective H-1B employee is ideally qualified for the position.

What Is The Moral Of The Story?

The ability of U.S. businesses to hire individuals in the H-1B category can be critical to the success and development of those enterprises.The shortage of these visas on a year to year basis creates problems for both employers who wish to hire in the category, and aliens who wish to accept temporary employment in the U.S.While employers are generally willing to help these foreign workers to gain the status, the process is not without potential pitfalls.All too often, however, those employees who are charged with handling the process on behalf of the employer are not versed in the rules and are not aware of the responsibilities and requirements related to the process.Careful handling of the petition process, and a concern for the interests of the company, are vital to insuring full compliance with the applicable laws by both the prospective employee and employer.

David J. Ceccanecchio is an Associate with Wolf, Block, Schorr and Solis-Cohen LLP and is a member of the Employment Services Practice Group.

Please email the author at dceccanecchio@wolfblock.com with questions about this article.