H-1B Visas Dylan Sugiyama International Employment Specialist North Carolina Office of State Personnel
Apr 01, 2015
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?