H-1B Visas

Dylan SugiyamaInternational Employment

SpecialistNorth Carolina Office of State

Personnel

AGENDA

Define H-1B and eligibility requirements

Provide an overview of I-129 form Describe the components of a

complete H-1B petition Fees Prevailing Wage

Agenda (Cont.)

Labor Conditions Application Employee qualifications and

equivalencies Numerical limitations Willful violators and H-1B dependent

employers Petition approvals, denials,

extensions, amendments, etc.

Nonimmigrant

A person who temporarily travels to the United States to work or visit

These people attest to Immigration Services that they plan to return to their home country in the near future

What is an H-1B Visa?

Common nonimmigrant visa for working professionals

Alien coming to the United States to perform services in a specialty occupation

Specialty Occupation

Requires a bachelor’s degree or higher as a minimum for entry into position

Specialty Occupation

Degree requirement is common to the industry in similar positions among similar organizations

Specialty Occupation

The employer must normally require a degree or its equivalent, or the nature of the specific duties are so complex that a bachelor’s degree is associated with the attainment of the required knowledge

Specialty Occupation

Must utilize federal immigration qualification equivalency standards in making credential equivalency determinations

Equivalency standards ordinarily used by the state may not be the same

Specialty Occupation-Evidence

Submit resumes of other employees who currently hold or who have held this position in the past

Submit a statement from the Occupational Outlook Handbook, showing that the position generally requires at least a Bachelor’s degree

Specialty Occupation-Evidence

Occupational Outlook Handbook can also be used to show that a specific type of degree is required for the position

H-1B Initial Evaluation

Analyze the candidate’s current visa status:

What type of visa do they have? How long have they been in that status? Can this person legally continue to work

in H-1B visa status for an adequate amount of time?

H-1B Initial Evaluation (Possibility #1)

Candidate has not yet worked in H status:

These people are counted against numerical visa limitations

Depending on the time of year, visa numbers may be exhausted, and therefore, a visa might not be available for this person

H-1B Initial Evaluation (Possibility #2)

Candidate is already in H Classification

Person who already possesses an H visa may change employers without having their new petition count against numerical limitation

If candidate is still eligible to work for an adequate amount of time in H status, proceed with petition

H-1B Initial Evaluation

Check to see if yearly cap has been reached at:

http://uscis.gov/graphics/services/tempbenefits/cap.htm

H-1B Initial Evaluation

Consider these questions in your evaluation:

What are your agency’s budget constraints?

How long does it take to train? How expensive is it to train? Are there similarly qualified United

States workers who won’t require visa sponsorship?

THE I-129 FORM

Basic Nonimmigrant Visa Application

Used for all Nonimmigrant Visas, not just H-1B

Tells Immigration which type of nonimmigrant visa you are requesting

The I-129 Form: Biographic Information

As an agency sponsor, do not write anything in the “family name” section

Enter the Agency name and address in “Company or Organization”

Enter Employer Identification Number

The I-129 Form: What do you want Immigration to do?

Are you petitioning for a new employee, or is this a renewal?

Are you asking Immigration to amend a previous petition?

Are you asking Immigration to change a candidate’s visa status (i.e., form a student visa to an H-1B)?

The I-129 Form: Who is the alien?

What is the employee’s name/address?

What is the employee’s immigration history?

The I-129 Form: Immigration History

How many times has this person applied for this type of visa?

Has this person ever applied for a green card?

If this person has applied for a green card, are they eligible for a temporary visa (i.e., do they intend to leave the U.S. upon the expiration of the H-1B)?

The I-129 Form: Job Information

What will this person be doing?

How much will you pay this person?

Are you providing the same benefits to this person as you are to American workers?

The I-129 Form: Employer’s Signature

You are verifying the accuracy of all included information

I-129 H Supplement Forms

Supplement states that petitioner’s intention is to apply for an H-1B nonimmigrant visa.

Form details job specific information that should be consistent with generic I-129 form

H-1B Fee Determination and Numerical Limitation Form

Used to calculate fee amounts.

When do I file?

Petitions for an H-1B visa may not be filed more than 6 months before the date on which the employee will actually begin service.

For How Long are H-1B Visas Valid?

Visas are valid for up to 3 years

May be renewed for 3 additional years

After 6 years in H-1B status, person must leave the U.S. for one year before he/she is eligible again (EXCEPTION TO THIS WILL BE NOTED LATER)

Components of a complete H-1B petition

Completed I-129 and supplements

Evidence that the Labor Condition Application has been filed with the Department of Labor

Evidence showing the proposed employment qualifies as a specialty occupation

Components of a complete H-1B petition (cont.)

Evidence showing that the alien has the required degree

Copy of the degree Copy of foreign degree and

equivalence certification Evidence of education and experience

that is equivalent to a U.S. degree

Components of a complete H-1B petition (cont.)

Copy of any required license or other official permission to practice the occupation in the state of intended employment

Copy of a written contract between employer and employee

INDEPENDENT CONTRACTOR

A person who carries on independent business, contracts to do a piece of work according to their own means and methods and is subject to control only as to results, and for whom the employer does not set work hours or provide necessary tools to do the job, or whom the employer does not have authority to hire and fire.

Components of a Complete H-1B Petition (Cont.)

Previous immigration documents

Previous visa stamps I-94 cards Copies of passports

H-1B Fees

I-129 Filing fee of $320

$1500 additional H status filing fee

$500 Security fee

If necessary or desired, $1000 additional fee for premium processing (requires decision within 14 days)

H-1B Fees

Application fees are paid by the employer

Employer can not ask employee to repay application fees

If an attorney is hired, the attorney’s fees are paid by the employer

$1500 Fee not required when…

Petition is being amended and does not request an extension of stay

Filed for the sole purpose of correcting a service error

Petition is the second or subsequent request for an extension of stay

Exemptions from $1500 fee

An institution of higher education

A nonprofit organization associated with an institution of higher education

Data Collection and Fee Exemption Form

If you are not sure about what fees you should be paying, this form determines whether the employer is exempt from paying the additional filing fees

Liability for Transportation Costs

Employer is liable for reasonable costs of return transportation if the alien is dismissed from employment before the end of the period of authorized admission

Liability for Transportation Costs

If the alien voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed

Determining Salary

Must determine exact salary before agreeing to sponsor an H-1B

Salary must be equal to or greater than the prevailing wage

Determining Salary

If you know that your agency can not afford to pay the prevailing wage, you are not permitted to hire a worker on an H-1B visa

If you pay American workers more than the prevailing wage, you must pay an H-1B worker at least what you pay similarly qualified Americans

Determining Salary

Rate of pay per year only includes money paid to the worker

Salary does not include a cash value of benefits given to an employee

Determining Salary

After salary has been determined: Make sure that you have posted or

sent your notice of filing an LCA You must inform your American

workers of your intent to hire an alien worker

Prevailing Wage Demo

http://www.flcdatacenter.com/OesWizardStart.aspx

PREVAILING WAGE LEVEL

STEP 1: Go to O*Net online

(http://online.onetcenter.org)

Look up appropriate job title by SOC code

Select the O*Net position that most closely matches the employer’s position

Prevailing wage level

Review the tasks, knowledge, etc., to gain an understanding of what is generally required for successful performance in that occupation

Prevailing Wage Level

Step 2: Experience Compare the overall experience

described in the O*Net Job Zone to experience required by the job

Add wage level points for any experience requirements above the O*Net job zone requirements

Prevailing Wage Level

Step 3: Education Compare the education generally

required for the occupation as described in the O*Net to that required by the employer

If the education required by the employer is more than what is required in the O*Net description, add points to the wage level

Prevailing Wage Level

Step 4: Special Skills Compare the special skills generally

required for the occupation as described in the O*Net to those required by the employer

If the special skills required by the employer are more than what are required in the O*Net description, add points to the wage level

Prevailing Wage Level

Step 5: Licensure Compare the licenses generally

required for the occupation as described in the O*Net to those required by the employer

If the licensure requirement by the employer is more than what is required in the O*Net description, add points to the wage level

Prevailing Wage Level

Step 6: Supervisory Duties Compare the supervisory responsibilities

generally required for the occupation as described in the O*Net to those required by the employer

If the supervisory responsibilities required by the employer are more than what is required in the O*Net description, add points to the wage level

Labor Conditions Application (LCA)

Before filing an H-1B application, the employer must first obtain a certification from the Department of Labor that it has filed a labor condition application

LCA (cont.)

The employer is required to make several attestations to the Department of Labor in order to prove that the H-1B employee is being appropriately treated

Wage Working Conditions Strike, lockout or work stoppage Notice

LCA Attestation #1

Wage Attestation

The employer attests that H-1B employee will be paid wages equal to or higher than those paid to all other individuals with similar experience and qualifications.

LCA Attestation #1 (Cont.)

Wage Attestation You must continue to pay an H-1B

alien, even if they are between projects (nonproductive time)

You must offer similar raises and bonuses to an H-1B worker to those that you offer to American workers

LCA Attestation #2

Working Conditions

The employer attests that the employment of H-1B nonimmigrants in the named occupation will not adversely affect the working conditions of U.S. workers similarly employed.

LCA Attestation #2 (Cont.)

You are adversely affecting American working conditions if you:

Pay foreign nationals less than Americans

Offer fewer benefits to foreign nationals Implement stricter work requirements

on foreign nationals without offering them higher pay

LCA Attestation #3

Strike, Lockout or Work Stoppage: The employer attests that on the date

the LCA is signed, there is not a strike, lockout or work stoppage occurring.

If one of these events occurs after the LCA is submitted, the employer must notify DOL within 3 days

Event must be over before LCA can be used in support of an H-1B application

LCA Attestation #4

Notice Employer attests that, as of the

filing date, notice of the labor condition application has been provided to workers employed in the named occupation

LCA Attestation #4 (Cont.)

Notice Notice of the application shall be

provided to workers by physical posting in a conspicuous location, where the H-1B worker will be employed

Notice can be given electronically

LCA Attestation #4 (Cont.)

Notice shall be given within 30 days before the date the LCA is filed

Shall remain posted for 10 days

Notice given by e-mail need only be given once

LCA

Each H-1B nonimmigrant must be supplied with a copy of the certified LCA

LCA

While an approved LCA is valid, it can be used for additional alien workers

Use photocopies of the same application

Employer LCA Penalties

If employer fails to meet LCA conditions:

Immigration Service shall not approve petitions filed with respect to that employer for a period of at least one year

LCA DEMO

http://www.lca.doleta.gov/

PUBLIC ACCESS FILES

Must be created within 1 working day of the LCA being filed

Includes: Copy of the approved LCA Evidence of the wage rate Explanation of the wage

determination (State pay grade)

Public Access Files (Cont.)

Prevailing Wage Source

Documentation proving the notice requirement has been fulfilled

Summary of benefits provided to all employees in similar paygrades

Public Access Files (Cont.)

The public access file must be maintained for a period of one year beyond the end of the employment period stated in the LCA.

Employee Qualifications

Employee must:

Hold at least a Bachelor’s degree or an equivalent foreign degree

If necessary, hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation

Employee Qualifications

Alien’s degree must be in a discipline that is directly connected to the successful completion of the duties of the proposed position

Employee Qualifications

Employee may possess education, specialized training and progressively responsible experience that is equivalent to the completion of a U.S. Bachelor’s degree

Credential Equivalency

Employees may substitute experience for education

Experience must be evaluated by an accredited agency, and that agency must submit a certified report of the equivalence

Credential Equivalency

Credential evaluation fees

These are not fees that should be paid by the agency

The evaluation is the property of the alien, and the expense should be incurred by the alien

Methods of Equivalence

Evaluation from an official with authority to grant college level credit at an accredited College or University

This school must possess a program for granting such credit

Methods of Equivalence

Results of a recognized college level equivalency examination or special credit program

College Level Examination Program (CLEP)

Program on Noncollegiate Sponsored Instruction (PONSI)

Methods of Equivalence

Evidence of certification from a nationally recognized professional association

Immigration Service Method of Equivalence

Bachelors degree Three years of specialized training/

experience must be demonstrated for each year of college level training the alien lacks

Masters Degree Bachelors degree followed by at least

five years of experience in the specialty

Proving Credentials

The immigration service often requests that credentials be verified.

You should submit evidence of credential verification with the visa application

Documentation Used to Prove Credentials

Two recognized authorities in the same specialty occupation

Membership in a recognized association related to the specialty occupation

License to practice the specialty occupation

Examples of Qualification Documentation (Not an exclusive list)

School records Diplomas Degrees Affidavits Contracts including dates of previous

employment

Qualification Documentation

Affidavits from former employers must describe the beneficiary’s expertise and specifically describe former duties

Ask the employee to get these affidavits, as many employers will only verify dates of employment

Licensure

If an occupation requires a license, it must be obtained by the worker before the approval of the petition

Temporary licenses are allowed at the discretion of the Immigration Service

Temporary Licensure

If an alien is working with a temporary license, the H-1B petition will only be valid for one year.

After one year, the worker must possess full licensure, or the renewal will be denied

Multiple Work Locations

A petition that requires services to be performed in more than one location must

Include an itinerary with dates and locations of the work sites and projects

Be submitted to the Immigration office that has jurisdiction over the employers main office

Amended Petition

Employer must file an amended petition to reflect any material changes in the terms and conditions of employment

Amended petition must include a new approved Labor Conditions Application (LCA)

Numerical Limitations

65,000 H-1B visas per fiscal year

20,000 additional visas for candidates who possess at least a Master’s degree from an accredited United States college or university

Numerical Limitations Extensions of stay not counted against

numerical limitation

Employee’s dependents are not counted against numerical limitation

When numbers are used, additional applications and fees are returned to sender

Numerical Limitations Do Not Apply

Extend the amount of time of a current H-1B

Change of H-1B employer

Change in terms of H-1B employment: Length of employment Salary Job description

Allow H-1B worker to hold an additional position

REMEMBER: H-1B Initial Evaluation

Check to see if yearly cap has been reached at:

http://uscis.gov/graphics/services/tempbenefits/cap.htm

H-1B Dependent Employers and Willful Violators

Employers who are categorized as H-1B dependent or as willful violators are subject to additional attestations to the Department of Labor

H-1B Dependent Employer

Has 25 or fewer full-time employees who are employed in the U.S., and employs more than seven H-1B workers

H-1B Dependent Employer

Has at least 26 but not more than 50 full-time employees employed in the U.S. and employs more than 12 H-1B workers

H-1B Dependent Employer

Has at least 51 full time employees in the U.S., 15% of whom are H-1B workers

Willful Violator

Employer who has willfully failed to meet a condition of the Labor Condition Application

H-1B Dependent Employer & Willful Violator: Additional Attestations

Displacement: Non-displacement of the U.S. workers in employer's work force

Occurs when an employer has laid off employees, and within 90 days attempts to hire an H-1B worker

H-1B Dependent Employer & Willful Violator: Additional Attestations

Secondary Displacement: Non-displacement of U.S. workers in another employer's work force

H-1B employer is a dependent or a willful violator and attempts to place an H-1B with an affiliated non-dependent employer that has, in fact, laid off within the last 90 days.

H-1B Dependent Employer & Willful Violator: Additional Attestations

Recruitment and Hiring: Recruitment of U.S. workers and hiring of U.S. worker applicant(s) who are equally or better qualified than the H-1B nonimmigrant(s)

H-1B Dependent Employer & Willful Violator Additional Attestations

Employer must take good faith steps to recruit U.S. workers using industry wide standards

Must offer a job to any U.S. worker who is equally or better qualified than the H-1B worker

Employees Exempt from Additional Attestations

“Priority Workers” are exempt from the recruitment and hiring attestation.

“Priority Workers” are defined as persons with extraordinary ability, outstanding professors or researchers, or certain multinational managers or executives.

Employees Exempt from Additional Attestations

Receives wages (including bonus) of at least $60,000 or;

Has attained a master’s degree or higher (or equivalent) in a specialty related to the intended position

H-1B Portability

H-1B portable foreign nationals may begin work for a new employer upon filing of a new H-1B petition

H-1B applicant must show the new employer a receipt for filing a new H-1B application before he or she left his/her former employer

Audits and Penalties

The U.S. Department of Labor is responsible for enforcing the LCA requirements. Consequently, the DOL can conduct an LCA investigation on its own or in response to a complaint made by any affected party (complaints must be filed no later than 12 months after the alleged violation). If the employer willfully and knowingly violates the requirements, then penalties will apply. Possible penalties range from $1000 fine to $35,000 and from one year to three years debarment (elimination) from filing H1B visa requests.

Job Reclassification = Amended Petition

Must file a revised form I-129 showing details of job change

Must file a new LCA to accompany the application

Fees are reduced for a revised application

Approval Notices

Issues on form I-797

Decisions will not be made earlier than 6 months before the date of actual need of the visa

Includes Name Classification Period of validity

Approval Notices

Check for approvals online at:

https://egov.immigration.gov/cris/caseStatusSearchDisplay.do;jsessi

onid=bjQCu6ZbZCY_

Validity of H-1B Visa If approved before the date the

petitioner indicates as the employee’s start date, the approval notice shall show the actual dates requested

If approved after the date the petitioner indicates as the employee’s start date, start date will typically be the approval date

Admission of Alien Worker Worker may enter the United States 10

days prior to the validity period of the H-1B visa

Must leave the United States within 10 days after the expiration of the visa

Alien may not work during 10 day grace periods

Extension of H-1B Additional supporting

documentation is not required

New prevailing wage determination is necessary

Extension may only be filed if the original petition has not yet expired

Period of Stay

When an alien has reached the maximum allowable stay in H status, a new H petition will not be approved unless the alien has resided outside of the United States for one year

Exception to 6 Year Limit

If an alien has made an application for a green card, and that application has been pending for at least one year, that person may continue to file for extensions of his or her H-1B visa in one year intervals

Denial of H-1B Petition

Immigration Service will notify employer of its intent to deny

Employer may rebut the evidence the Service offers in its intent within 30 days of service of the notice

Denial of H-1B Petition Employer will be informed of

reasons for the denial

Appeal is available for denial of an original petition

No appeal is available for the denial of an extension petition

Revocation of an H-1B

Two types of revocation

Revocation on notice Automatic revocation

Revocation of an H-1B Petition (Cont.)

Immigration Service may revoke at any time

Revocation is automatic if Employer files a written withdrawal Employer ceases to exist

Revocation of an H-1B Petition (Cont.)

Revocation on notice Worker is no longer employed in the

position Statements included in the petition

were not true Employer violated conditions of the

approved petition The approval was made in error

Revocation of an H-1B Petition (Cont.)

Employer may submit rebuttal evidence within 30 days of receipt of notice of intent to revoke

Automatic revocations may not be appealed

Petitions revoked on notice may be appealed

Employment of Foreign Nationals Website

http://www.osp.state.nc.us/hr/Foreign%20Nationals/fnfaq.htm

QUESTIONS?