THE SPECIALTY OCCUPATION H–1B VISA
One of the most popular Non–Immigrant visas offered by the United States government is the H–1B Visa. This visa offers many benefits to foreign nationals who hold a bachelors degree and wish to live and work in the United States on a temporary basis. This visa also allows for spouses and children to accompany the H–1B holder to the United States for the duration of H–1B visa time. Finally, this visa allows for dual intent, meaning that foreign nationals who wish to eventually immigrate to the United States to work for an American company may eventually apply for Legal Permanent Residency while still in the United States.
The H–1B visa requires a US company to petition for the foreign national, and that the company employs the foreign national in a specialty occupation. The H–1B visa is available initially for three years and can be renewed for a maximum of six years.
The beneficiary employee may intend to work temporarily or permanently and likewise, the employer may intend to keep the employee temporarily or permanently. The H–1B visa will not allow an alien to live and work in the United States permanently therefore it is not the appropriate visa for permanent status. However, the H–1B visa allows for dual intent, meaning that a person may file an immigrant petition while present in the United States on H–1B status.
The appropriate procedure to have the employee apply for permanent residence in the United States is through a process called labor certification. The labor certification may begin contemporaneously with the H–1B process or afterwards. The labor certification process is estimated to take approximately two to three years. Hence, the H–1B visa is most appropriate for your employee to work for your company in the interim period.
The following is a list of requirements which the regulations place on a company when that company sponsors individuals in an H–1B visa status:
- Wages. The employer must attest that it will not pay “less than the greater of the following”: The actual wage paid to all other individuals at the work site with similar experience and qualifications for the position in question; or the prevailing wages for the occupational classification in the area of intended employment.
- Working Conditions. In addition to attesting to the appropriate wage, you must attest that your employee will have the same working conditions as other employees similarly employed and they will not be adversely affected by his/her employment. Working conditions include hours, shifts, vacation periods, and fringe benefits.
- No Strike or Lockout. The employer must also attest to the lack of a strike or lockout by a union if any exists.
- Notice. As part of the H–1B visa processing, we will be filing on your behalf a labor condition application (“LCA”) with the Regional Department of labor in Chicago, IL. Notice of the filing of the labor condition application must be posted in at least two conspicuous locations in the employer’s establishment in the area of intended employment. The notice must be posted for ten days, starting before filing the LCA. The notice must contain the basic information in the LCA, including the wage offered, and provision that the LCA is available for public inspection.
- Return Transportation. The employer must pay the return transportation costs of the H–1B employee if the employee is dismissed prior to the completion of the approved H–1B term. The employer need not pay if the employee voluntarily quits. The regulations do not specifically delineate between dismissal with or without cause. However, it is my legal opinion that if an employee is dismissed for cause that you are not responsible to pay for the reasonable transportation costs to return this employee to his/her home country. In reality, the employee usually looks for another job and obtains a new H–1B visa for another company and does not wish to return to his/her home country should they be dismissed.
- Record Keeping. The primary effort required on your part is to collect and maintain careful records to justify the wage selected and working conditions. We will conduct research and document for you that you meet and exceed the prevailing wage for your employee’s position. You are not required to submit these records with the LCA, but you must have them available for public inspection upon request by the Department of Labor. You must keep the records for one year after the alien leaves your employment. However, the alien’s payroll records must be kept for three years after completion of employment.
The mutual benefits that this category of visa offers to companies and foreign nationals make it an attractive option for many. However, as can be seen from the short list of requirements listed above, the H–1B visa process can be complicated and the penalties for not following the federal regulations can be harsh. The lawyers at The Law Firm of Shihab & Associates have successfully completed thousands of H–1B petitions for large and small companies alike. We have the experience and proven track records that you require in order to employ the H–1B worker that your company needs.
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