H-1b Visa Petition General Steps/visas/h1b/h1b-visa-requirements.html1. 1 Discuss the wage and position /OESQuick.aspx /h1b-minimum-wage-or-lca-prevailing-wage-for-a-position-in-an-area-in-usa/1.2 The employer must demonstrate that the position is one requiring a professional in a specialty occupation and that the intended employee has the required qualifications. Definition of a specialty occupation is an that requires a theoretical and practical application of a body of highly specialized knowle dge, and the attainment of a bachelor’s or higher degree in the specific specialty or its equivalent as a minimum for entry into the occupation.2. Employer’s requirementsA U.S . employer is a person, firm, corporation, contractor or other association or organization in the United States with an IRS tax identification number. There must be an employer-employee relationship, as indicated by the fact that the employer may hire, fire, pay, supervise or otherwise control the work of the employee.In addition to showing that both the job requirements and the applican’s credentials or experience are “professional”, the employer must also meet the Department of Labor (“DOL”) requirements and file Form I-129 (H-1B petition”) with the USCIS for permission to employ the foreign national.Prior to filing the H-1B petition with the USCIS, an employer must file a labor condition application (“LCA”) with the Department of Labor. Employers affirm in the labor condition application that the wage offered to the applicant is at least as high as that paid by the employer for the same type of job, and the number equals or exceeds the prevailing wage for the job in the same geographical area; that working conditions will not adversely affect those workers similarly employed; that there is no strike or lockout at the employer’s premises and that the notice of the LCA has been given to current employees.3. After the company has successfully filed a LCA, they are free to apply for the visa. An employer is charged with the responsibility of filing for the visa on behalf of the employee as they are not allowed to self-petition.4. Waiting for approval by the USCIS is a torturous task for most. There are variousf actors the USCIS considers in order to approve a person’s H-1B visa. These factors may include:∙The person the employer wants to hire that is their level of education and expertise ∙The position the employer offers in the sense that it must require a degree holder for example, one cannot apply for a H-1B visa for the position of a cleaning lady.∙The employer is also a key factor since the company must be financially capable and be of adequate size in order for their employee to be granted a H-1B visa.Can my company make H1B visa applications?Any US employer can sponsor an H1B petition, provided it has an IRS Tax Number, also known as an IRS Number or Tax ID Number. This number is needed for obtaining approval of the Labor Condition Application (LCA), which is an essential preliminary to the H1B petition itself. However, employers should take note that sponsoring an H1B petition involves them making a number of undertakings, enforceable by heavy civil and criminal penalties: These undertakings are:-∙To pay the H1B worker at least the higher of the wage paid to similar workers in the same company or the "prevailing wage" (usually determined by the relevant State Employment Services Agency) for the occupation in the area the worker will be employed;∙That the recruitment of the H1B worker(s) will not adversely affect the conditions of the employer's US-resident employees in similar jobs;∙That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H1B aliens to be employed at the site of any subsequent strike or lockout;∙That a copy of the LCA form will be given to the H1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H1B alien will be working;∙To maintain records of the LCA and the H1B alien's employment for inspection by the US Department of Labor.Note that the prevailing wage is generally lower for non-profit and academic/research organizations.H1B Beneficiary EligibilityIn order to qualify for an H1B visa, the alien must demonstrate that s/he is able to work in the 'speciality occupation' for which s/he is being hired by the sponsoring employer. This can be demonstrated by:-∙Possession of a relevant US college degree;∙Possession of a non-US college degree (and, generally, 3 years' relevant high-level work experience) independently evaluated as being equivalent to a relevant US college degree;∙Possession of at least 12 years' high-level work experience, independently evaluated as being equivalent toa US college degree; or∙Possession of any relevant State or Federal license that may be required in order to practice in a particular profession.NB: If there is a requirement for a State or Federal license in order to practice any 'speciality occupation', then the alien must generally possess such a license in order to qualify for an H1B visa. For example, doctors, lawyers, accountants and similar professionals must generally have passed the relevant state licensing examination and be in all other respects qualified to practice in the State of intended employment./us/investor_h-1b.htm#fein----------------------------------------------------------------------------------------------------------- How to Petition for an H-1B VisaFrom an employer perspective, H-1B eligibility is much more complex. The employer must file the petition for the visa on behalf of the employee, who is not allowed to self-petition. Every company, regardless of size or age, must petition for one of the 65,000 H-1B visasthat are made available every April 1st by U.S. Citizenship and Immigration Services.The main factors affecting approval are:ØThe position offered. Does it require someone with at least a bachelor’s degree? For example, even if someone has a PhD, that person would not qualify for an H-1B visa based on work as a waiter.ØThe person. Does the H-1B beneficiary have a degree (or equivalent) which closely matches the company’s requirements and specific position offered? This has been an area of contention between the USCIS and practitioners of immigration law. USCIS has been requiring occupation-specific majors, while the law clearly supports granting of visas to applicants with degrees in multiple disciplines, as long as it reasonably qualifies the applicant to perform the work. For example, occupation specific degrees are required in law or medicine, but for marketing or IT positions, there are usually a number of academic disciplines which are acceptable.ØThe company. Is the company financially viable and of a sufficient size and complexity to justify hiring the H-1B candidate? Factors considered by the USCIS include the company’s stage of development, organizational complexity, ability to pay the required wage, current number of employees, gross income, and funding. Evidence provided to document company operations varies on a case-by-case basis. A comprehensive list is available in our H-1B Start Employer Questionnaire.H-1B Employer ObligationsØProtect wages in the region. Employers must pay every H-1B worker wages that are 100% of the wages paid to US workers in similar positions in the same geographical region. This wage is referred to as the prevailing wage.ØProtect wages in the workplace. Employers must pay every H-1B worker the actual wages paid to other employees in the same position, with normal variability for experience, merit, skills, etc. This wage is referred to as the actual wage.ØPost the proposed salary. Employers must post the prospective salary or the salary range for an H-1B position for 10 business days at the worksite in two conspicuous locations. Advertising required, only if the company is H-1B dependent - see below.ØProtect working conditions.Employers cannot use H-1B workers to break a strike and they must notify their U.S. workforce of the hiring of H-1B professionals.ØProvide benefits equally.Employers must provide benefits to H-1B employees in the same manner as provided to similar U.S. workers.ØFile a Labor Condition Application (LCA). Employers must file a Labor Condition Application attesting to the wages and the no-strike use of H-1B employees with the U.S. Department of Labor (DOL).ØPay the employee during benching. Employers who bench employees during non-productive status must continue to pay full salary and benefits as attested on the Labor Condition Application.ØBe subject to penalties for failures. Failure to comply with DOL regulations could result in civil penalties, a requirement to pay back wages, and even debarment from participating in key immigration programs. Audits are performed by US immigration authorities randomly.ØNo discrimination in hiring. The employer may decline employing any worker who is not legally eligible to work. Written offers should be contingent upon proof of eligibility to work for any employer in the U.S. If a candidate requests sponsorship for H-1B status, the company can decide to sponsor or not.ØReturn transportation. If an employer terminates an H1-B employee before the endof that employee’s period of authorized stay, the employer is liable for the “reasonable costs” of return transportation for the employee to his or her last country of residence. Immigration statutes and regulations suggest that the employer’s liability is limited to the reasonable cost of physically returning the H-1B employee, and does not extend to the cost of relocating family members or property.ØWithdrawal of H-1B after termination. Regulations require an H-1B employer to notify USCIS “immediately” of “any material changes in the terms and conditions of employment” affecting an H-1B employee. USCIS policy is that a termination is such a“material change.” Employers may satisfy this no tification obligation by sending a letter explaining the change or termination to USCIS office that approved the petition.H-1B Employee ObligationsØInform Lawyer of Travel. An employee who will be traveling in H-1B status should inform a lawyer in advance to make sure that all paperwork is in order and to ensure that H-1B status is still valid. He/she may need a trip to a US Embassy or Consulate abroad before returning to secure a visa stamp.ØQuitting a job is allowed. An employee may quit his/her employment in H-1B status at any time. He/she may be subject to contractual terms made specifically with the employer, outside the scope of the H-1B visa.ØLay-offs and leaving the U.S. An employee who is laid off or terminated is no longer considered to be maintaining H-1B status, despite having an I-94 document which might still be valid, on its face. The employee must leave the U.S. as quickly as possible, as is no official “grace period” or provision for continuing H-1B status while looking for another job.The Players in the H-1B Process and Their RolesA dual representation situation is created in the preparation of an H-1B petition, where our firm has the interests of both the US company petitioner and foreign national employee in mind, in representing both parties together, to obtain the desired visa from the US government.ØEmployer and employee participation. Both the US company petitioner (employer) and foreign national (employee) supply essential information to complete the needed paperwork, submitted to US immigration authorities. Paperwork includes numbered immigration forms, letters, and supporting documentation. Employer signs the immigration forms and a critical support letter, which confirms the temporary offer of employment, and summarizes eligibility for the H-1B. Employer also follows instructions from our firm to ensure compliance with applicable law surrounding hiring H-1B workers, including posting and maintenance of public access files (PAFs). Employer must update the Public Access File with information about benefits, salary changes. Information about recruitment is necessary only if the employer is dependent – see below.ØAttorney analysis and preparation. The attorney obtains the initial paperwork on a particular employee and determines if H-1B status will be viable based on information presented. The attorney informs the client about H-1B obligations and responsibilities. The attorney prepares the forms and files them with USCIS.ØDepartment of Labor. Reviews the Labor Condition Application (LCA) and certifies that the prevailing wage is being paid based on the information provided. DOL also may perform random audits to see if employer requirements in addition to the LCA disclosures are being upheld.ØUS Citizenship & Immigration Services. USCIS receives the filing and determines that the job requirements, the employee's credentials and the employer's viability are all sufficient for approval.ØDepartment of State/visits to US Embassy or Consulate abroad.If the employee is abroad after receiving approval of the petition, or is granted consular approval (as opposed to a change or extension of status) the employee must apply for an H-1B visa stamp at a US Embassy or Consulate abroad.Steps for EmployerThe Process of Sponsoring and Qualifying for an H-1B VisaThis process includes a few major components, which I will outline below:LCA application by a companyBefore an employer files for an initial petition for an H-1B visa, they have to file for a LCA with United States Department of Justice. The LCA is a form that contains statements that help protect US citizen workers due to the hiring of these new employees using the H-1B visa. It states the following; -∙The employee will be paid the prevailing wage as per their position∙The employee will receive equal benefits as other employees in the same position∙Hiring of the employee should not affect the working conditions of other employees.∙At the time of hiring, no active labor dispute or work stoppage is in place.Petition for an H-1B VisaAfter the company has successfully filed a LCA, they are free to apply for the visa. An employer is charged with the responsibility of filing for the visa on behalf of the employee as they are not allowed to self-petition. Usually, there is 65000 H-1B visas awarded each year that are up for grabs. However, 6800 visas are already set aside for Singapore and Chile while another 20000 are awarded to workers with advanced degrees such as a Mastersdegree or a PhD. After petition is done, one all has to do is wait for feedback from the USCIS. The fate of the employee then lies on the outcome of the lottery.The approving of the Visa by USCISWaiting for approval by the USCIS is a torturous task for most. There are various factors the USCIS considers in order to approve a person’s H-1B visa. These factors may include:∙The person the employer wants to hire that is their level of education and expertise∙The position the employer offers in the sense that it must require a degree holder for example, one cannot apply for a H-1B visa for the position of a cleaning lady.∙The employer is also a key factor since the company must be financially capable and be of adequate size in order for their employee to be granted a H-1B visa.Spouses/ ChildrenIn the event that the employee has a spouse and children, they are allowed to accompany the H-1B principal under H-4 status. They are not allowed to work but can study in the country.Employee ObligationsThere are various things that one has to take care of in the event that they are granted theH-1B visa.∙They have to inform their lawyer of their travel plans prior to the travelling date.∙They are allowed to quit their jobs but this may lead to termination of their visa∙In case of a layoff, their H-1B status is lost and they have to leave the country immediately as there is no grace period provided.The cost of acquiring an H-1B VisaIn order for one to acquire this visa, they must be prepared to meet the cost between $2000-$4000 to walk you through the maze and complete all the government filings.In case you are looking to either sponsor or acquire an H-1B visa, it would be helpful to understand all the steps mentioned above and thenvisit LawTrades for a free consultation with an experienced startupimmigration attorney.Specialty Occupation RequirementsThe occupation has to be a specialty occupation that generally requires a bachelor's degree or higher degree(or its equivalent) as a minimum for entry into the occupation. Fashion models of distinguished merit or ability may also apply for the H-1B program.A position that would normally not require a bachelor's degree may qualify as a specialty occupation if the position is so complex or unique that only an individual with a degree can perform the requisite duties. A position with specific duties that are so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a bachelor’s or higher degree may also qualify as a specialty occupation.Positions that are normally considered professional positions would most likely qualify as a specialty occupation.Examples of specialty occupations include: architects, engineers, professors, teachers, researchers, medical professionals, dietitians, physicians, nurses, computer professionals, accountants, attorneys, social workers, economists, librarians and other professionals.Educational RequirementsThe employer must show that the alien worker meets the specific educational requirements to be engaged in the specialty occupation. As a general rule, the alien worker must possess a Bachelor's or higher degree from an accredited college or university and the degree must be a requirement to qualify for the specialty occupation.If the alien worker was awarded his/her degree from an institution not located in the U.S., that degree must be evaluated to determine if it can be consideredequivalent to a U.S. awarded degree. If the alien possesses a Bachelor’s degree or its equivalent, specific work experience is not required.If an alien does not meet the educational requirements, experience or training may be substituted, whereby three years of professional experience is considered equivalent to one year of college education (every 3 year of work experience = 1 year of University / College education). Pleasesee Using Experience to Meet the Advanced Degree Requirement for more details.For example:Neil is from India and has been working as a network analyst for more than 6 years. He only has an Associate’s degree with 2 years of college education, but wishes to apply for H-1B status so that he can work in the United States as a network analyst. The minimum educational requirement has been met because every 3 years of related work experience can substitute for 1 year of college education, and his 6 years of work experience make up for the 2 year shortage in terms of educational requirements. Therefore he may apply for an H-1B visa.Furthermore, if state law requires a worker(such as doctors, dentists, attorneys, CPAs, registered nurses) to obtain a license or professional certification to practice a specific specialty occupation, the alien must hold the appropriate license and be fully qualified to lawfully perform the duties of the position offered.DOL and USCIS RequirementsIn addition to both the Occupation requirements and the Education requirements, the employer must also adhere to the Department of Labor (DOL) requirements to obtain a Labor Condition Application (LCA). After the DOL certifies the LCA, the employer must submit Form I-129 to the USCIS for permission to employ the foreign worker under H-1B status, so that the alien worker may be hired.To successfully complete this process, the employer must first attest that the H-1B visa worker is being paid, at minimum, what is called the “prevailing wage” for the job. The “prevailing wage” is defined by DOL rules as the average rate of wages paid to workers similarly employed in the area ofintended employment. The prevailing wage is determined through the National Prevailing Wage Center (NPWC). The following factors determine one’s prevailing wage:1.Job title;cational and work experience requirements;3.Job description;4.Job location; and5.Type of employer, (i.e. academic, government or private.)Example 1:John and Ron are both professors of biochemistry who have the same educational experience and job description. John is employed by a university in New York City, while Ron works for a college inHouston, Texas. Everything else being equal, due to the differences in location and cost of living at these locations, the prevailing wage for John is higher than the prevailing wage for Ron.Example 2:Jen and Ryan are researchers in chemistry. Both livein Seattle, Washington and their jobs require the same level of education and work experience. The University of Washington hires Jen, while a private company employs Ryan. Since they are employed in different sectors (i.e. public v. private sectors), their prevailing wages will be different and Jen’s prevailing wage is much lower than Ryan’s prevai ling wage.Example 3:Jill and Greg are researchers in chemistry.Both livein Washington D.C. and have similar education and work experience. The same private company employs both of them, where Jill is a research scientist and Greg is just a post-doctoral researcher. Since Jill has a higher job title and her job description encompasses more duties, Jill’s prevailing wage will be higher than Greg’s.Next, the employer must attest to the following six conditions:1.The employer will pay the H-1B employee the higher of:a.The actual wage rate that it pays to all other individuals with similar experience and qualifications, orb.The prevailing wage level for the occupation in the “area of intended employment”, which is definedas the Metropolitan Statistical Area (MSA) and the narrower Primary Metropolitan Statistical Area (PSMA).2.Employment of the H-1B worker will not adversely affect the working conditions of workers similarlyemployed in the intended area of employment;3.There is no current strike/lockout involving the prospective H-1B worker’s position at his/herworkplace;4.The employer will provide notice of filing of the labor condition application to the employees’ collectivebargaining representative for the H-1B occupation or, lacking such a representative, willconspicuously post such notice at the work site onthe date the labor condition application is filed,or within 30 days before it is filed, and shall remain posted for 10 days;5.The employer will maintain for public examination:a. A copy of the Labor Condition Application filed,b.Documentation of the salary paid to the H-1B employee,c.An explanation of how the actual wage was determined, andd.Documentation of the basis used for the prevailing wage;6.The employer must agree to pay the alien the reasonable cost of transportation to return to his or herhome country if the employer terminates the alien’s employment prior to the end of the authorized employment period.U.S. Employer Sponsorship RequirementFor an alien to obtain an H-1B visa, an employer must make a job offer and be willing to sponsor the alien by filing a petition with the USCIS. Generally, individuals cannot apply for an H-1B visa to allow them to work in the US. The U.S. employer must petition for the entry of the employee.An employer seeking the services of an H-1B alien and filing the necessary papers to obtain such services must be a "U.S. employer." A U.S. employer is a person, firm, corporation, contractor or other association or organization in the United States with an IRS tax identification number known asa Federal Employer Identification Number (FEIN). There must be an employer-employee relationship,as indicated by the fact that the employer may hire, fire, pay, supervise or otherwise control the work of the employee.There are two major requirements that the employer must fulfill:a.The employer must have the ability to pay the employee. For instance, John wants to hire a computerprogrammer for his start-up company. He promises to pay an alien worker $50,000 for a year of work;how ever he currently has only $800 in his company’s bank account. Under this circumstance, John fails the ability to pay test;b.The job offer to the intended H-1B beneficiary should be a bona fide offer. In other words, there mustbe a real business need for the position to be filled by the alien worker.On August 2, 2011, USCIS announced and outlined a series of policies to promote the US economy and investment by attracting foreign entrepreneurswith talent orexceptional ability who can create jobs, form start-up companies, and invest capital in areas of high unemployment. USCIS has clarifiedthat a nonimmigrant alien who is the owner of a petitioning company created in the US may establisha valid employer-employee relationship for the purposes of sponsoring an H-1B visa. Not all alien-owned companies can establish an employer-employee relationship, but it is possible to do so. There must be a degree of separation between the alien and his/her company as the employer. The alien cannot be self-employed in the traditional sense and be the beneficiary of an H-1B petition from his/her own company. There must be an independent company entity that can exerthiring/paying/supervising/firing authority outside of the alien-owner’s command in order for that same alien to be an H-1B beneficiary for his/her own company. For more information, please visit our article on “Starting a Business in Which an F-1 / H-1B Visa Holder is a Shareholder or Owner.”- See more at: /h-1b/h1b_requirements.html#sthash.DBbeMKVX.dpufH-1B RequirementsMinimum wage: /OesWizardStart.aspxRequirement 1 - You must have an employer-employee relationship with the petitioning U.S. employer.In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment.Requirement 2 - Your job must qualify as a specialty occupation by meeting one of the following criteria:∙ A bachelor’s degree or higher degree or its equivalent is normally the minimum requir ement for the particular position;∙The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a fieldrelated to the position;∙The employer normally requires a degree or its equivalent for the position; or∙The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.How do I prove that my position within my business is in an occupation that normally requires a degree in a related field?USCIS often refers to the Occupational Outlook Handbook (OOH) from the Department of Labor (DOL) to help determine whether certain jobs require a degree. If the OOH does not indicate thata degree in a related field is normally the minimum requirement for the position, examplesof evidence you may submit to demonstrate that the position normally requires such a degree includes:。
