What Does the Employer Do?

Qualify as a U.S. Employer.

The employer must have a U.S. taxpayer identification number. Foreign businesses not established in the U.S. cannot use this visa to bring employees here.

Obtain an Approved Labor Condition Application.

The Employer must prepare and file a Labor Condition Application (LCA) with the Regional Office of the Department of Labor (DOL). The LCA is a form which requires the employer to describe the position and the salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions and the giving of notice.

On the Labor Condition Application (LCA) the employer must attest that it will pay "no less than the greater of the following¡±:

(a) The actual wage level paid to all other individuals at the work site with similar experience and qualifications for the position in question; OR

(b) The prevailing wage for the occupational classification in the area of intended employment.

Once the LCA is approved, the employer files a petition with the Immigration and Naturalization Service. The employer must document that the position requires the services of a person in a "specialty occupation." This means a person who is working in a professional position and who has a minimum of a bachelor's degree or its equivalent.

Fees

The employer has to pay for Application Fee ($320), Antifraud fee ($500) and American Competitiveness and Workforce Improvement Act (ACWIA) Fee ($750 if less than 25 employees, $1,500 if 25 or more employees). It is optional to pay for Premium Process Fee ($1,000, if pay premium process fee, the petitioner could know the result within 15 days after the receipt of application be issued).

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What Are the Employer's Liabilities?

Completing the LCA is just the beginning. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees. Upon request, these records must be provided to DOL's Wage and Hour Division.

If the employer terminates the services of the employee prior to the expiration of the H-1B Visa, the employer is responsible for paying for the employee's return transportation to his or her last foreign residence.

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What Does the Employee Do?

The employee must prove that he or she is qualified for the specialty occupation and the specific job offered by the employer. The employee must be able to show that his or her foreign university degree is the equivalent to a U.S. degree by obtaining a credential evaluation of his or her education. Under the regulations, the need for a person in a specialty occupation can be shown by one of the following:

a) a bachelor's or higher degree is normally the minimum requirement for entry into the particular position;

b) the degree requirement is common in the industry in parallel positions among similar organizations, or the position is so complex or unique that it can be performed only by an individual with a degree;

c) the employer normally requires the degree for the position; or

d) the nature of the duties are so specialized and complex that knowledge required to perform them is usually obtained through a bachelors level or higher education.

If the worker is in the U.S. and currently holds a valid nonimmigrant visa status, he or she may apply in the U.S. for the H-1B visa. For example, if he or she has lawful student status (F-1), the worker may seek a change from F-1 to H-1B. This change only gives the person the ability to work in U.S. for the sponsoring employer. if the worker needs to travel abroad, he or she will need to apply for an H-1B visa at a U.S. Consulate. Workers not in Lawful status in the U.S. or those residing abroad, must apply for an H-1B visa at a U.S. Consulate.

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How Long Can the H-1BEmployee Remain in the U.S.?

The H-1B is a temporary visa with specific limitations on periods of stay for up to six years in the United States. The initial petition may be approved for up to three years. After the initial period, three more years extension is available.

The employer must update or re-file the LCA and must file H-1B petition extensions. After six years, the worker must spend one year outside the United States before he or she is entitled to have another H-1B visa or L-1 visa. Many workers on H-1B visas obtain permanent resident status (the "Green Card") during their initial stay in the U.S. H-1B visa holder enjoys the benefit of "dual intent," meaning that individuals can apply for Permanent Residence without jeopardizing their H-1B status.

The H-1B employee's spouse and unmarried children under 21 years old may be granted an H-4 visa. An H-4 visa holder is not permitted to work in the United States. They may, however, attend school.

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H-1B Cap

The word "Cap" used in this Update refers to annual numerical limitations set by Congress on certain nonimmigrant visa classifications, e.g., H-1B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular nonimmigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification. The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap.

H-1B Employer Exemptions

H-1B nonimmigrants who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

H-1B Advanced Degree Exemption

The H-1B Visa Reform Act of 2004 makes available 20,000 new H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution. For each fiscal year, 20,000 persons who hold such credentials are statutorily exempted from the cap.

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