H - 1 B Visa- I M M I G R A T I O N - S T A T U S

General Information  

H-1B or Temporary Worker status is appropriate when a non-U.S. resident is employed for a temporary time period in a professional position. (Note: although the permission to stay in the United States and employment authorization is temporary, the actual position filled by the employee may be a permanent one.

The H-1B is only appropriate where the position to be filled by the applicant is a “specialty occupation” defined as a position:

1. that requires the theoretical and practical application of a body of highly specialized knowledge, and

2. the minimum entry-level requirement is a bachelor degree or higher in a specific occupational specialty.

The employer must file a ”Labor Condition Attestation" (LCA) with the U.S. Department of Labor. In the LCA, the employer must make the following four attestations:

1. The H-1B employee will be paid the ”actual wage" for the place or employment or ”actual wage" for the geographic area, whichever if greater.

2. The employment of an H-1B worker will not ”adversely affect" the working conditions of other, similarly employed persons at the place of employment.

3. There is no current strike or lockout.

4. A notice of the filling of the LCA has been posted in at least two conspicuous locations at the place of employment.

Although no documentation is filed with the LCA, the employer is required to maintain substantial, detailed documentation available for inspection by any interested party.

Actual wage has been interpreted to mean that the H-1B worker will receive at least as much as other similarly employed and similarly qualified individuals within the organization or company. If others are not all paid exactly the same amount, the salary of the H-1B worker must be within the range of the others.

Prevailing wage is the average wage of persons similarly employed within the geographic area, usually within the entire state of employment. A safe means of meeting this requirement is to work with the State Workforce Agency (SWA) in obtaining a prevailing wage.

An actual determination from the SWA will ensure that the salary to be paid the employee is within the permitted range. When there are no statistics on prevailing wage available, the SWA will conduct a prevailing wage survey and this will take much longer.

Once the SWA response has been received and the other requirements are met, the LCA can be prepared for filing. The LCA is submitted to the U.S. Department of Labor Regional Office. If there are no problems with the LCA, a copy is then certified by DOL and returned for filing with the H-1B petition.

Prior to filing to the date of filing, two copies of the LCA must be posted in two conspicuous places on the employer’s premises (generally where wage and hour notices are posted) and remain posted for ten consecutive days. The posted copies of the LCA must have the following typed on the form:

”Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor."

If a collective bargaining representative is located at the place of employment, the representative must be furnished a copy.

The H-1B petition is filed with USCIS and submitted with proof of the employee’s qualifications, proof of the employer’s ability to pay the wages stated for the period requested and explanation as to why the services of a professional are required.

If the employee is in the United States in another visa status, he/she can request change of status with the H-1B petition. If the employee is outside the United States, he/she can request that the consulate in his/her country be cabled with a notification of approval.

If the H-1B applicant has a spouse or minor children,they can be admitted with an H-4 visa. If they are in the United States, dependents can submit anapplication for change of status at the time of the filing of the H-1B petition. Outside the United States, dependents will submit an application to the consulate for a nonimmigrant visa based upon the approval of the principal H-1B applicant.

The H-1B is employer specific and the employee is not allowed to accept any other employment without the approval of a new H-1B petition. In addition, if there is a substantial change in the employee’s duties, job title, or salary, a new LCA and H-1B petition must be filed.

H-1B visas can be approved in three years increments and are limited to amaximum of six years. This includes time spent with previous employers unless the person has been outside the U.S. for one year. There are limited circumstances in which additional extensions may be granted in one year increments. There is no minimum time on an H-1B.

The employer may be responsible for the employee’s return travel expenses to his/her home country if employment is terminated before the end of the H-1B period. The regulations require that the employer pay the filing fees to USCIS and that portion of the attorneys fees related to the employer’s obligations related to the position.

There is a cap on the number of H-1B visas that may be approved in a fiscal year. If the cap has been reached at the time the application is received, the visa will not be approved until the beginning of the next fiscal year on October 1 st. Employees of certain entities (including institutions of higher education) are exempt from the cap.