H-1B Visa: Professionals

The H-1B Visa classification is available for full or part-time employment in the United States. An employer seeking to employ a foreign worker through the H-1B Visa category must demonstrate that the offered position qualifies as a “specialty occupation,” and that the H-1B worker possesses the qualifications necessary to establish eligibility.

Basic H-1B Requirements

Generally, to qualify for an H-1B Visa as a member of a “specialty occupation,” a beneficiary must have, at minimum, a US bachelor’s degree, or its foreign equivalent in a field of study related to the specific specialty of a job offered by a US employer. In addition, a bachelor degree must normally be required for the proposed H-1B position within the company or industry.

In the absence of a university degree, an H-1B petition may still be approved if an H-1B beneficiary can demonstrate significant employment experience in a professional, executive level or advanced capacity. The conversion measure is as follows: each missed year of college/university must be replaced with 3 years of related work experience. For example, someone with an associate’s degree would have to demonstrate 6 years of related and progressive work experience; someone without any formal training would have to demonstrate 12 years of related and progressive employment experience, and so on.

An H-1B is valid for a maximum of 6 years (with certain exceptions more time may be granted), and usually issued in increments of up to 3 years at a time.

Filing Fees for New H-1B Visa Petitions and Extensions

Private companies sponsoring an H-1B worker must pay a $750 (companies with 25 or fewer full time equivalent employees) or $1500 (companies with more than 25 full time equivalent employees) “training” surcharge in addition to the USCIS H-1B filing fee of $320 unless the H-1B petition is being filed to amend the terms of H-1B employment without requesting an H-1B extension, or unless this H-1B petition is the 2nd extension request for the same H-1B beneficiary and sponsor.

In addition, employers filing an initial H-1B petition must pay an additional one-time “fraud detection and prevention fee” of $500 per initial H-1B petition or H-1B change of employer petition.

Singapore-Chile H-1B1 Visa applicants need not pay the fraud fee. Also, if the H-1B employer is a qualified tax exempt/non-profit university-affiliated educational or government research institution, then the surcharge may not apply.

The training surcharge and fraud fee must be paid by the H-1B employer and may not be recovered from the H-1B beneficiary (the foreign national being sponsored for the H-1B visa).

H-1B Visa Application Process and Employer Compliance

An H-1B employer must first obtain an approved Labor Condition Application (LCA) from the US Department of Labor (USDOL) establishing that a variety of conditions have been met and will continue to be met for the duration of employment on an H-1B Visa. In each LCA accompanying an H-1B Visa petition, the petitioning H-1B employer must describe the position and salary offered, and must attest to certain facts concerning wages and working conditions:

• Unless the position is unionized, an H-1B employer must pay the H-1B Visa holder at least the “actual” wage or salary for that job at that work site, or the “prevailing wage” in the geographical area of employment, whichever is higher.
• H-1B employment will NOT adversely affect the working conditions of others similarly employed by the petitioning employer, i.e., that vacation, shifts, fringe benefits and other conditions of work of the H-1B employee are not substandard.
• There is no strike or work stoppage involving the H-1B position at the work site.
• An H-1B employer must also provide notice of the H-1B visa holder’s employment and salary to other employees at the work site or to their collective bargaining representative.
• Notice will be provided by posting for 10 consecutive days a copy of the LCA in two conspicuous locations at the H-1B work site. And,
• A copy of the LCA will be given to the H-1B Visa holder before he or she starts working.

H-1B Visa Public Inspection File

An H-1B employer also must keep on file any documentation used to support the above attestations. This documentation must be made available for public inspection at the H-1B visa holder’s work site or at the H-1B employer’s principal place of business in the US within one day of filing an LCA for an H-1B petition.

Although compliance with the LCA is primarily complaint-driven, the USDOL may also investigate possible violations on its own initiative. If the USDOL determines that a violation has occurred, an H-1B employer may be required to pay a civil penalty, and the employer may be barred from petitioning or extending H-1B petitions for foreign employees for at least one year.

Prevailing Wage for H-1B Visa Purposes

Additionally, whether or not penalties are imposed, if an H-1B employer has paid H-1B workers less than the prevailing or actual wage for that H-1B position, then the employer may be required to pay back wages to all H-1B workers in a particular classification.

Please note: if an H-1B employer-sponsor’s wage offer is below the prevailing wage for the H-1B position, then the H-1B petition cannot be filed unless the employer relies upon its own survey or a third-party survey, both of which must meet certain USDOL requirements to be deemed compliant PRIOR to filing of the H-1B petition.

USCIS H-1B Visa Petition

Upon receiving an approved LCA, an H-1B petition must be filed with the US Citizenship & Immigration Service (USCIS). The petition and all supporting documentation must establish that the H-1B beneficiary qualifies as a member of a “specialty occupation.”

Please note that USCIS treats H-1B extensions and/or H-1B transfers as new H-1B petitions and thus, they will entail procedures and documentation identical to any initial or prior H-1B petition.

Changes in H-1B Visa Holder’s Employment Conditions

Certain changes in the H-1B employment conditions can affect an H-1B petition, the LCA, and the sponsoring H-1B company’s obligations. For example, corporate restructurings, lay-offs, terminations, job site relocations, reduction in an H-1B worker’s hours or a new occupational classification, may require the employer to file an amended H-1B petition in advance of the change. Clients should contact us immediately should any of these contingencies occur.