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H-1B specialty occupation workers
What does the Employer do?
Qualify as a U.S. Employer: The employer must have a federal tax
identification number. Foreign businesses not established in the U.S.
can not 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
Department of Labor (DOL). The LCA is a form that must be carefully
prepared and posted in 2 conspicuous places at the worksite. It
requires the employer to describe the position and salary. The LCA
also requires the employer to attest to complex facts concerning the
wage, working conditions, labor conditions, and the giving of notice.
Once it is approved, the employer then files a petition with the U.S.
Citizenship and Immigration Services (USCIS), a part of the Department
of Homeland Security. The employer must document that the position
requires the services of a person in a "speciality occupation." This
means a person who is working in a professional position that requires
a minimum of a bachelor's degree in a field relevant to the position or
its foreign equivalent.
What are the employer's obligations and liabilites?
Completing the LCA is just the beginning. The employer must maintain
a public access file containing information about the required wage to
be paid to the H-1B worker and the posting of the notice. The
employer must also maintain wage and hour records, as well as
information concerning working conditions for all similar situated
employees. Upon request, these records must be provided to DOL's
Wage and Hour Division.
If an employer does not document the wage, pay the required wage, or
maintain the required records, the employer could be liable for
substantial penalties, including back pay and fines of up to $35,000
per violation. The employer could even lose the right to apply for the
H-1B workers as well as all other immigrant and nonimmigrant petitions
for up to three years.
Employers are required to pay the education fund fee for each H-1B
petition. An attorney can provide you with the applicable filing fees. If
the employer terminates the services of the employee before the
expiration of the H-1B status, the employer is responsible for paying
the employee's return transportation to his or her last foreign
What must a H-1B dependent employer do?
A dependent employer is one who has employed more than the
specified percentage of H-1B workers relative to the workforce,
determined by the size of the employer. Dependent employers are
required to additionally attest that they have not displaced U.S. workers
and have taken steps to recruit U.S. workers. The dependent
employer may be exempt from these attestations, however, depending
on the salary and degree-requirement of the H-1B worker.
What does the Employee do?
The employee must prove that he or she is qualified for the speciality
occupation and the specific job offered by the employer. The
employee must be able to show that his or her foreign university
degree and/ or work experience is the equivalent of a U.S. degree.
Workers in the U.S. who currently hold a valid nonimmigrant visa may
apply in the U.S. for H-1B status. For example, if a worker is in lawful
student status (an F-1 visa), he or she may seek a change from F-1 to
H-1B. This change gives the person the ability to work in the U.S. for
the sponsoring employer. However, the H-1B employee may change
employers if hte new employer files a petition on his or her behalf. 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, and may not apply for H-1B status in the U.S.
What are the Employee's Liabilities?
Under current law, a person who fails to maintain status (e.g. by
engaging in authorized employment, or by staying beyond the
authorization period) may be required to depart the U.S. and may be
ineligible to return, depending upon how such failure to maintain status
How long can the H-1B employee remain in the United States?
The H-1B is a temporary status with specific limitations on periods of
stay in the U.S. The initial petition may be approved for up to three
years. The initial petition may be approved for up to three years. After
the initial period, three more years are available.
The employer must update or refile the LCA and must file H-1B petition
extensions. After six years, the worker must spend one year outside
the U.S. before he or she is entitled to have another H-1B visa. Many
workers on H-1B visas obtain permanent residence status (the "Green
Card") during their initial stay in the United States. H-1B visa holders
pursuing a Green Card may, in some cases, extend their stay beyond
their six-year limit.
The H-1B employee's spouse and unmarried children under 21 years
may be granted an H-4 visa. H-4 visa holders are not permitted to
work in the U.S. They may, however, attend school.