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U.S. IMMIGRATION SYSTEM | NON-IMMIGRANT | H1-B Specialty Workers H-1B status is available for an initial term up to three years with an extended term of an additional three years.
Each year, the application period for new H-1B requests opens on April 1. However, the H-1B approval can only commence on October 1, which marks the first day of the federal fiscal year. In short, there is a considerable lag time between the date on which an employer files its H-1B petition and the date on which it can expect a foreign national to commence his/her H-1B employment. In recent years, the H-1B numerical allotment has been exhausted quite early in the application cycle. Last year, the H-1B numbers became exhausted on May 26; for FY 2007, we expect the numbers to become depleted at an even earlier point in time. There are, though, instances in which an H-1B request will not be subject to the H-1B quota. Among the most common cap-exempt situations are the following:
Employers are required to pay the “prevailing wage” to H-1B workers. The Department of Labor has established regulations which require that the wages paid to an H-1B worker be the higher of:
The “actual wage” is determined by examining wages paid to the employees who perform comparable duties and have similar experience, skills and education as the alien. Determination of the “actual wage” must be adequately documented by the employer. The “prevailing wage” is determined by examining wages paid to persons in similar occupations in the general area of employment. In certain circumstances wage surveys may be relied upon. The employer may also request the state employment office to provide a prevailing wage for the occupation in the area. Failure to pay the higher of the actual or prevailing wage can result in back pay obligations, fines, and potentially debarment from hiring other alien workers. Labor Condition Application and Notice After having established the prevailing wage, the employer must file the Labor Condition Application (LCA) with the Department of Labor. The LCA may be valid for several years, but the wage must be reviewed every two years. If the employer is subject to a collective bargaining agreement, notice of filing the LCA must be given to the employees’ bargaining representative. If there is no such representative, a copy of the LCA (or the information contained therein) must be conspicuously posted at the place of employment. The LCA contains certifications by the employer, subject to perjury, that the alien will be paid the appropriate wage, that the employment of the alien have no adverse effect on working conditions, that there is not a lockout or work stoppage, and that notice has been provided as required. Role of the Department of Labor The process begins with the preparation and filing of a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). The employer is required to attest that 1) it will pay the foreign national no less than the greater of the prevailing wage or actual wage of the occupation; 2) it will provide working conditions that will not adversely affect the working conditions of U.S. workers similarly employed; 3) there is no strike or lockout in the course of a labor dispute in the occupational classification at the place of employment; and 4) it has publicly notified the bargaining representative (if one exists) for its employees of its intent to employ a foreign national or that it has posted such a notice at the place of employment. Further, the employer must provide the information required in the LCA about the number of aliens sought, occupational classification, job duties, wage rate and conditions under which the aliens will be employed and the period of employment. Recordkeeping Requirements The employer is required to keep, for specified periods of time, documentation concerning determination of the actual wage, the prevailing wage, compliance with the notice requirement, the actual wage rates of similar employees, and the filing of the LCA. In certain circumstances, some of this documentation may need to be made available to the public on twenty-four hour notice. It must also be made available to the Department of Labor upon request. There are specific provisions for the type of documentation to be maintained, the period over which it must be maintained, and the location of the documentation. Application for H-1B Specialty Worker Status After the LCA is approved by the Department of Labor, a petition may be filed with the U.S. Citizenship and Immigration Services (USCIS) to classify an alien as an H-1B specialty worker. The petition must be supported by documentation evidencing that the alien is an H-1B specialty worker and that the job requires such a worker. It must also be accompanied by the LCA. The period required to process an H-1B petition is several months, although there is a special program called Premium Processing under which the adjudication time is reduced to 15 days upon payment of an extra $1000 filing fee. Attorney's Role The role of Aronson & Associates in this process will be at the outset to determine the probability of success and to guide both the employer and the employee through the process in such a manner that all laws and regulations are complied with and the chances of a successful result are maximized. Specifically, we will:
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Aronson & Associates, P.A. |