An H-1B temporary worker is a foreign national who is coming temporarily to the U.S. to perform a specialty occupation. A specialty occupation is defined as “an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation in the United States.” [INA214(i); 8USC 1184(i)]
For example, accountants, architects, teachers (primary and secondary, excluding nursery school teachers), university professors, certain types of nurses, attorneys, physicians, and engineers will all qualify as H-1B workers. The only way to make a determination whether a particular worker will qualify is through advice from an experienced immigration attorney.
The H-1B visa remains one of most versatile nonimmigrant employment visas utilized by U.S. businesses to hire foreign workers. Here is a list of issues to keep in mind when filing an H-1B petition.
LIMITATION ON DURATION OF STAY AND FULL-TIME / PART-TIME EMPLOYMENT
Generally, the maximum amount of time that an individual can hold H-1B status is 6 years. An employer may request initial employment for up to 3 years and then may request an extension for another 3 years. However, exceptions do exist to allow an H-1B extension beyond the initial 6 years. An employer may petition for a foreign worker for either full-time or part-time employment. Prevailing Wage
The prevailing wage element requires employers to demonstrate that the wage offered will not discriminate against U.S. workers by offering wages that are lower than the actual wage paid to similar workers. Generally, the prevailing wage requirement is met by offering wages as determined by submitting a Prevailing Wage Request to the State Workforce Agency or demonstrating that a union contract is in force. The H-1B laws require employers to pay the higher of the actual wage or the prevailing wage.
THE LABOR CONDITION APPLICATION (LCA)
The LCA is an application by the employer to the Department of Labor attesting to certain conditions of the position offered. These conditions are:
1.) That the higher of actual or prevailing wage will be paid;
2.) That the employee is eligible for the same benefits as other similarly employed U.S. workers;
3.) That the employee is not being employed because U.S. workers are out on strike or lockout;
4.) That the employment of the foreign worker will not adversely affect the working conditions of other workers; and
5.) That proper notification was given to U.S. employees or the union representative if the position is a union position.
The LCA must be made available for Department of Labor (DOL) and for public inspection. The LCA may be obtained online at www.lca.doleta.gov.
SPOUSE OR CHILDREN OF AN H-1B
Spouses and children of an H-1B are eligible for H-4 visas. An H-4 is either a spouse or unmarried children under 21 years old. H-4 holders cannot work in the U.S. but are eligible to attend school either part-time or full-time. To prove the relationship to the H-1B an H-4 candidate will need to present a marriage certificate if a spouse or a birth certificate if a child.
FILING FEES
Generally, an employer must pay for the H-1B Form I-129 filing fee ($320), H-1B Training Fee of either $750 or $1500 depending on the size of your company, and a Fraud Prevention and Detection Fee ($500). All employers must pay these fees unless an employer qualifies for exemption from the H-1B Training Fee.
If a company currently employs 1-25 full-time equivalent employees, the H-1B Training Fee is $750. Companies who employ more than 25 full-time equivalent employees will need to pay $1500. The employer must pay the H-1B Training Fee upon the initial hire and the first H-1B extension of the same employee. The H-1B Training Fee is not required for second or subsequent petitions for H-1B extension. The Fraud Prevention and Detection fee needs to be paid when the employer initially hires the employee even if he or she is currently working as an H-1B with another employer.
A simple way to remember this is that every employer needs to pay for the H-1B Training Fee twice for each H-1B employee and the H-1B Fraud Prevention and Detection Fee needs to be paid once for each H-1B employee.
FILING PROCEDURE
Documents are filed with the USCIS service center having jurisdiction over the petitioner which is either the California Service Center or the Vermont Service Center. The petitioner must send Form I-129, I-129 supplement forms, an approved Labor Condition Application, support document about the petitioner’s business, and documents showing the qualifications of the candidate. If there are dependent/s then the form I-539 need to be filed along with proof of relationship to the H-1B, i.e. marriage certificate or birth certificate or both. Only one I-539 is required to be filed as children are listed on the application. The current Form I-539 filing fee is $300.
John Mei is an immigration attorney and partner with the law firm of Danziger and Mei, LLP located in Woodland Hills, California. Mr. Mei provides clients with solutions in the area business and corporate immigration law. His practice areas include all nonimmigrant visas, labor certifications, schedule A workers, petitions for EB 1 to 3, National Interest Waivers, investor visas such as E-1 / E-2 and EB-5 investor petitions. Mr. Mei’s law firm has represented U.S. companies, multi-national corporations, start-ups, publically traded corporations, hospitals, as well as public and private universities, and foreign investors. He is committed to providing legal services focused on professional ethics and giving clients results through creative legal solutions. Mr. Mei endeavors to build relationships with clients based on trust and communication. As such returning client phone calls and emails inquiries is a priority. To contact John Mei, please visit his firm’s website at: http://www.danzigermei.com/
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