H1B Visa: Professionals

The H1B Visa classification is available for full or part-time employment in the US. An employer seeking to employ a foreign worker on an H1B Visa must demonstrate that the offered position qualifies as a “specialty occupation,” and that the H1B worker has the qualifications necessary to establish eligibility.

Basic H1B Requirements

Generally, to qualify for an H1B 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 a job offered by a US employer. A bachelor’s degree must normally be required for the proposed H1B position within the company or industry.

In the absence of a university degree, USCIS may still approve an H1B petition if an H1B 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 must demonstrate 6 years of related and progressive work experience; someone with no formal training must demonstrate 12 years of related and progressive employment experience, and so on.

An H1B is valid for a maximum of 6 years (in certain circumstances, USCIS may grant extensions). USCIS generally issues an H1B and in increments of up to 3 years at a time.

Filing Fees for New H1B Visa Petitions and Extensions

Private companies sponsoring an H1B 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 H1B filing fee of $460. No fees are required to correct USCIS errors. Amendments that request no extension require the base filing fee, but no training fee. Extensions beyond the 1st extension request for the same H1B beneficiary and employer require a filing fee, but no training fee.

In addition, employers filing an initial H1B petition must pay an additional one-time “fraud detection and prevention fee” of $500 per initial H1B petition or H1B change of employer petition.

Singapore-Chile H1B1 Visa applicants need not pay the fraud fee. The training fee surcharge may not apply to qualified tax exempt, non-profit university-affiliated educational or government research institutions.

The US employer must pay the training surcharge and fraud fee. Employers may not recover such fees from the H1B beneficiary.

H1B Visa Application Process and Employer Compliance

An H1B employer must first obtain an approved Labor Condition Application (LCA) from the US Department of Labor (USDOL) establishing that they will meet a variety of conditions prior to and for the duration of employment on an H1B Visa. In each LCA, the petitioning H1B employer must describe the position and salary offered. The employer must also attest to certain facts concerning wages and working conditions. These include:

• Unless the position is unionized, an H1B employer must pay the H1B 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.
• H1B 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 H1B employee are not substandard.
• There is no strike or work stoppage involving the H1B position at the work site.
• An H1B employer must provide notice of the H1B visa holder’s employment and salary to other employees at the work site or to their collective bargaining representative.
• Employers should provide notice by posting for 10 consecutive days a copy of the LCA in two conspicuous locations at the H1B work site. And,
• The employer will provide a copy of the LCA to the H1B holder prior to the start date.

H1B Visa Public Inspection File

An H1B employer must keep on file any documentation supporting the above attestations. They must make this available for public inspection at the work site or principal place of business in the US within one day of filing an LCA.

Although compliance with the LCA is primarily complaint-driven, USDOL may investigate possible violations on its own initiative. If the USDOL finds a violation, they may require an H1B employer to pay a civil penalty. They may also bar that employer from petitioning or extending H1B petitions for foreign employees for at least one year.

Prevailing Wage for H1B Visa Purposes

Whether or not USDOL imposes penalties, if an H1B employer has paid H1B workers less than the prevailing or actual wage for an H1B position, the employer may be required to pay back wages to all H1B workers in a particular classification.

Please note: if an H1B employer-sponsor’s wage offer is below the prevailing wage for the H1B position, then the employer may not file the H1B petition unless they rely upon their own survey or a third-party survey. To comply, any salary survey must meet certain USDOL requirements.

USCIS H1B Visa Petition

Upon LCA approval, the employer files an H1B petition with USCIS. The petition must establish that the H1B beneficiary qualifies as a member of a “specialty occupation.”

Please note that USCIS treats H1B extensions and/or H1B transfers as new H1B petitions. Thus, they will entail procedures and documentation identical to any initial or prior H1B petition.

Changes in H1B Visa Holder’s Employment Conditions

Certain changes in the H1B employment conditions can affect an H1B petition, the LCA, and the sponsoring H1B company’s obligations. For example, corporate restructurings, lay-offs, terminations, job site relocations, reduction in an H1B worker’s hours or a new occupational classification, may require the employer to file an amended H1B petition in advance of the change. Clients should contact us immediately should any of these contingencies occur.