H1B Information

This non-immigrant visa classification applies to an alien who will be employed temporarily in a specialty occupation (one which typically requires a bachelor’s degree or higher) or as a fashion model of distinguished merit and ability. Under current law, there is an annual limit of 65,000 aliens who may be issued a visa or otherwise provided H-1B status. As many as 20,000 additional H-1B slots are available to graduates of U.S. Master’s degree (or higher) programs.

The H-1B program allows companies and other employers in the United States to temporarily employ foreign workers in specialty occupations that require a minimum of a bachelor’s degree or higher in a specific field, or its equivalent. H-1B specialty occupations may include fields such as architecture, engineering, mathematics, medicine and health, education, business specialties, accounting, law, etc.

H-1B visas are subject to an annual cap for each fiscal year. To meet the cap, in 2020 US Citizenship and Immigration Services (USCIS) implemented an electronic registration process and now all H-1B applicants who are applying for the first time must register their entry with USCIS and USCIS then conducts a lottery to determine who can petition for a visa.

H-1B holders wanting to extend their currently granted H-1B authorization, amend their H-1B terms of employment, transfer between employers, or work a concurrent with a second H-1B job are not subject to this annual cap and are not subjected to the lottery.

The basic requirement for approval of an H-1B petition by United States Citizenship & Immigration Services (USCIS) is to show that the job involves a specialty occupation. This is generally defined as a job requiring at least a bachelor’s degree or equivalent work experience in a specialist field. The person being sponsored (the beneficiary) must meet this standard. If a license is required to perform the duties, then the beneficiary must also have the appropriate license.

The H-1B process involves two steps. First, the employer submits a Labor Condition Application (LCA) to the Department of Labor (DOL) for certification. Second, the employer files a petition with the Immigration Service (USCIS) to obtain H-1B classification for the alien.

By filing the LCA with DOL, the employer is attesting to the following four labor condition statements:

  • 1. That for the entire period of authorized employment (typically, three years), the employer will pay all H-1B alien(s) who have similar experience and qualifications for the specific position set forth in the LCA at least the higher of:
    • a. The actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific position in question; or
    • b. The prevailing wage level for that specific occupational classification by all employers in the geographic area of intended employment. We will assist you in determining the prevailing wage for the position. DOL will accept a State Employment Service Agency (SESA) wage determination as per se correct and will not investigate a prevailing wage complaint where there is such a determination.
  • 2. That for the entire period of authorized employment, the employment of the H-1B alien will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
  • 3. That on the date the LCA is signed and submitted, there was not a strike, lockout, or work stoppage in the course of a labor dispute in the relevant occupation at the place of employment, and if such a strike occurs, the employer will notify DOL within three days.
  • 4. That on or before the date of the LCA, notice of the application was posted in two conspicuous locations in the employer’s establishment. If a collective bargaining agreement applies to the position, notice must be provided to the collective bargaining representative in lieu of posting.

The LCA procedure is primarily complaint-driven; that is, an investigation into the accuracy of the LCA will normally occur only if a complaint is filed by an aggrieved party. If a complaint is filed, the DOL Wage and Hour Administrator will investigate the complaint. In the event of a violation of the LCA, the Administrator may (1) impose a $1,000 fine per violation; (2) bar the employer from obtaining future visas for a period of at least one year; and (3) order the employer to provide for payment of back wages. Material misrepresentation on the LCA can also subject the signer to penalties for perjury including fines and incarceration.

When employing an alien worker on a H1-B classification the employer must maintain a “Public Access” folder on behalf of the alien worker and the employer must make available for inspection certain documentation about the LCA. This folder must be retained for one year beyond the end of the period of employment specified on the LCA.

The “public access file” for this LCA should contain the following items:

  • A) A signed original of the certified LCA, Form ETA-9035;
  • B) Documentation that provides the wage rate to be paid the H-1B nonimmigrant such as an offer letter, employment contract, or relevant parts of a collective bargaining agreement;
  • C) A full, clear explanation of the system that the employer used to set the “actual wage” the employer has paid and will pay for the occupation(s) in which the H-1B nonimmigrant is to be engaged (a salary chart or memorandum to the file summarizing the pay system sufficiently detailed that a third party could use it to determine the wages of each worker in the occupation). Payroll records are not required in the public examination file;
  • D) A copy of the documentation the employer used to establish the “prevailing wage” for the occupation. In your case, the file should contain a copy of the enclosed relevant pages from the OES Survey;
  • E) A summary of benefits offered to U.S. workers in the same occupational classification and a statement as to how any differentiation in benefits is made (without divulging proprietary information) where there are differences;
  • F) Where the employer undergoes a change in corporate structure (e.g. a successor corporation or “spin off”) a sworn statement by a responsible official of the new employing entity that accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity, together with a list of each affected LCA and its date of certification, and a description of the actual wage system and the EIN of the new employing entity. The sworn statement should be completed before the H-1B is employed.
  • G) A copy of the document(s) with which the employer has satisfied the union/employee notification requirement: Copies of the ETA 9035E Posting Notices, with a notation of where and when it was posted, should be retained in the file.
  • H) A copy of the certified LCA must be given to the H-1B Employee no later than the date he/she begins work on H-1B status. As documentation of this, please include in the file a signed letter from the H-1B Employee acknowledging his/her receipt of the certified LCA prior to the start date.
  • I) In addition to the public access documentation, the employer must maintain certain records for DOL to review in the event of a complaint. The employer must maintain payroll records for the alien and any other individuals with experience and qualifications similar to those of the aliens who are in the same position at the place of employment. The employer must maintain the payroll records for a period of three years from the date of the creation of the records.
  • J) Once the LCA has been certified, we will complete and file the H-1B petition with USCIS. The petition will consist of the Form I-129, the employer’s letter of support outlining the proposed position duties and requirements and supporting documentation including information about the employer.
  • K) Under current regulations, in the event the employer dismisses the alien from employment before the end of the period of authorized admission, the employer is expected to accept liability for the reasonable costs of return transportation to his or her residence abroad.