|
H1B Immigration - What Must an Employer Do?
Qualify as a U.S. Employer.
The employer must have a U.S. taxpayer identification number. Foreign businesses not established in the United States cannot 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 regional office of the Department of Labor (DOL). The LCA is a form that must be carefully prepared and posted in two conspicuous places at the work site.
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 the LCA is approved, the employer files a petition with the Immigration and Naturalization Service (INS). The employer must document that the position requires the services of a person in a "specialty occupation," This means a person who is working in a professional position that requires a minimum of a bachelor's degree or its equivalent in a specific field related to the job.
What Are the Employer's Liabilities?
Completing the LCA is just the beginning. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly 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 H-1B visas as well as all other immigrant and nonimmigrant visas for up to three years.
Employers are required to pay a fee for each H-1B application and first extension, to help with the education and training of U.S. workers.
If the employer terminates the services of the employee prior to the expiration of the H-1B visa, the employer is responsible for paying the employee's return transportation to his or her last foreign residence.
What Must a 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. The dependent employer must comply with additional attestation requirements. It must attest that it has undertaken domestic recruitment and not laid off any U.S. workers before hiring an H-1B employee.
What Must The Dependent Employee Do?
The employee must prove that he or she is qualified for the specialty occupation and the specific job offered by the employer. The employee must be able to show that his or her foreign university degree is the equivalent of a U.S. degree, or that his or her work experience is equivalent to a degree.
Workers in the United States who currently hold a valid nonimmigrant visa may apply in die United States for the H-1B visa. For example, if a worker is in lawful student status (an F- 3 visa), he or she may seek a change from F-l to H-1B. This change only gives the person the ability to work in the United States for the sponsoring employer. However, the H-1B employee may change employers if the new employer files a petition 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 the United States or those residing abroad must apply for an H-1B visa at a U.S. consulate.
What Are the Employee's Liabilities?
Under current law, a person who fails to maintain status (e.g., by engaging in unauthorized employment, by staying beyond the authorization period) may required to depart the United States and may be ineligible to return, depending upon how long such condition existed.
How Long Can the H-1B Employee Remain in the United States?
The H-1B is a temporary visa with specific limitation on periods of stay in the United States. 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 re-file the LCA and must file H-1B petition extensions.
After six years, the worker must spend one year outside the United States before he or she is entitled to have another H-l B visa. Many workers on H-1B visas obtain permanent resident status (the "green card") during their initial
stay in the United States. H-1B visa holders pursuing green card may, in some cases, extend their stay beyond the six-year limit.
The H-1B employee's spouse and unmarried child) under 21 years old may be granted an H-4 visa. H-4 visa holders are not permitted to work in the United States. They may, however, attend school.
|
