 
 
|
|
ABCs of H1Bs : Getting Back to the Basics of the H1B Visa
Posted Oct 14,
2008
©MurthyDotCom
This article was written by the attorneys of the Murthy Law Firm for
Murthy's Corporate Bulletin. If you are an employer or HR manager,
interested in the services offered by our firm, contact our
Corporate Services Manager.
©MurthyDotCom
In October, we at the Murthy Law Firm
turned the focus of our monthly teleconference toward answering many of the
basic questions employers have about the H1B visa program. The H1B is
generally the primary immigration option that a business considers when it
wishes to hire a foreign national for a position that requires at least a
bachelor's degree (or equivalent). However, U.S. immigration law sets a
general limit of 65,000 new H1Bs that can be approved during each U.S.
government fiscal year. Since each U.S. government fiscal year starts on
October 1st,
and the demand exceeds the available limit, employers interested in
sponsoring someone must time their cases appropriately. This limit, or
cap, applies to foreign nationals who
previously
never held H1B status for H1B cap-subject
employers. For these employees, employers must be prepared to file the
requests, referred to as H1B petitions, to the U.S. Citizenship &
Immigration Services (USCIS) as early as April 1st for a start date of
October 1st. The April 1st date is appropriate, as H1B petitions may be
filed up to six months in advance of the requested start date. If an
employee has had an H1B petition approved
previously
on his or her behalf, the new company
interested in employing that individual usually is not subject to the same
restrictions that affected the person’s first H1B employer. During our
October 2008 teleconference, Murthy Law Firm attorneys discussed the
essential concepts that the USCIS applies when looking at an employer’s
request to employ a foreign national using an H1B.
©MurthyDotCom
Question 1. What is an H1B?
©MurthyDotCom
H1B is a
nonimmigrant visa category that allows a foreign worker to come to the U.S.
and work in a “specialty occupation,” which includes most professional
positions. The H1B gives a foreign national permission to work in the U.S.
and a status that allows her/him to lawfully remain in the U.S. on a
temporary basis. Generally, the maximum period that a worker can be in the
U.S. with the H1B is six (6) years, which can be granted in increments of no
more than three (3) years at a time. There are exceptions to this rule that
accord USCIS the authority to grant an employer’s request for a worker to be
approved for more than six years, but these rely upon the foreign worker's
being sponsored for lawful permanent resident (commonly referred to as
"green card") status.
©MurthyDotCom
Question 2. What is a “Specialty Occupation?”
©MurthyDotCom
If the USCIS is to approve an employer’s request
for an H1B for a worker, the job must fit the law’s definition of a
"specialty occupation." This means a job that requires the
"theoretical and practical application of a body of highly specialized
knowledge to fully perform the occupation AND which requires the attainment
of a bachelor's degree or higher in a specific specialty as a minimum
for entry into the occupation in the United States." This will include many
professional positions.
©MurthyDotCom
The position must require a bachelor’s (or higher) degree in the specific
field. The fact that the foreign national possesses a bachelor’s degree does
not make that position a specialty occupation.
Also, if a position requires a bachelor’s degree in
“any” field, it is most likely not considered a specialty occupation.
©MurthyDotCom
Question 3. Who can sponsor and employ workers using an H1B?
©MurthyDotCom
Only a U.S. employer
may file an H1B petition with the USCIS for an H1B employee. An employer is
defined as an entity that: (1) engages a person to work within the U.S.; (2)
has an employer-employee relationship that allows it to hire, pay, fire,
supervise or otherwise control the work performed; AND (3) has an
Internal Revenue Service Tax Identification Number. This definition includes
partnerships and sole proprietorships. The U.S. employer must have and
retain control of the employment performed by the H1B worker. The USCIS has
been issuing many RFEs and denials of H1B petitions for consulting companies
by stating the consulting company is not an employer, as defined by law.
©MurthyDotCom
Question 4. What is the H1B cap?
©MurthyDotCom
The H1B cap is the short-hand term used to refer to the law’s annual limit
on the number of new H1Bs that can be issued each U.S. government fiscal
year. While the annual limit is set at 65,000, special programs for
nationals of Chile and Singapore reduce this number to 58,500. If a foreign
national has not worked using the H1B previously, s/he typically seeks one
of these new H1Bs.
©MurthyDotCom
There are 20,000 additional slots for individuals who have completed a
master's degree or higher education from a U.S. institution of higher
learning.
©MurthyDotCom
Question 5. Are there any exceptions to this Cap? Are there people who do
not have to compete for a “new” H1B?
©MurthyDotCom
The law has a few built-in exceptions to the H1B cap. First, if one was
approved for an H1B at any time previously, s/he is generally treated as
having received a “new” H1B and a new company would only be asking for USCIS
to grant permission for the employer to use the balance of time out of the
total of six (6) years generally available. Second, in certain instances,
the job itself may not be subject to the numerical limitation on H1Bs that
can be issued. Employment at universities and their nonprofit affiliates, as
well as nonprofit and governmental research organizations, has the benefit
of this provision of the law. Finally, some physicians are exempt from the
cap if the H1B is requested for them to comply with the requirements of
waivers granted by the USCIS so that the physician does not have to return
to the home country.
©MurthyDotCom
Question 7. Is there a particular salary an employer must pay a worker
using the H1B?
©MurthyDotCom
Yes. An H1B employee must be paid no less than the greater of the prevailing
wage or the actual wage for the position.
©MurthyDotCom
A prevailing wage is specific to a position within the local area in which
the job is to be performed. The U.S. Department of Labor (DOL) has published
guidelines on its website that explain how to determine the prevailing wage.
Also, an employer can ask the state in which the job will be performed to
determine the prevailing wage. The actual wage is the wage paid to all other
employees at the work location with similar experience and qualifications
for the position with that particular employer.
©MurthyDotCom
Question 8. If an employer does not have end-client work for an H1B
employee, can the employee be benched?
©MurthyDotCom
If H1B employees are “benched” due to the employer’s business reasons (such
as the lack of available work), then they must still be paid for the full
hours specified on the H1B petition. If an employee is absent for reasons
that are not work related, or if the employer grants personal time off under
other laws like the Family Medical Leave Act, then absences for such
personal or health reasons, will excuse the employer from paying the
H1B-mandated prevailing wage.
©MurthyDotCom
Question 9. What is the Labor Condition Application (LCA)?
©MurthyDotCom
The LCA filed and certified as part of the H1B program should not to be
confused with the labor certification, also known as a PERM
application and filed as part of the green card process. An LCA for an H1B
petition must be certified by the DOL before filing an H1B petition at the
USCIS. The
DOL is
responsible for ensuring that a foreign worker neither displaces nor
adversely affects the wages or working conditions of U.S. workers in the
same area where the employer intends to locate the H1B employee. Compliance
with the DOL’s LCA rules was reviewed in our August 2008 edition of Murthy’s
Corporate Bulletin,
H1B LCAs & DOL Investigations: Understanding the Basics of Compliance.
©MurthyDotCom
The LCA requires an employer to make a series of attestations (signed under
oath with federal criminal sanctions) regarding the correct wage being
offered, the work location, working conditions, and termination of U.S.
workers in the same position. The LCA may be submitted and certified
electronically. A certified LCA must be filed with the H1B petition to USCIS
and the failure to include it will generally result in the denial of the H1B
petition. As of October 1, 2008, an employer must register with the DOL and
establish an online account before it can submit any LCA online.
©MurthyDotCom
Question 10. If a company wishes to hire a foreign national in H1B
status, who working for somebody else, when can the individual start with
the new company?
©MurthyDotCom
Under law, a person who is already in H1B status generally is allowed to
start working for a new employer upon the filing of the new H1B petition if
s/he was lawfully admitted into the U.S., the employer files a good-faith
H1B petition, and the foreign national never worked in the U.S. without
USCIS permission.
©MurthyDotCom
Question 11. Are there special issues regarding H1Bs that affect the IT
consulting industry?
©MurthyDotCom
The USCIS requires that all the work sites
of the sponsored worker be identified in the H1B petition AT THE TIME OF
FILING. If an H1B worker is to be placed at end-client sites, those
locations of actual employment must be identified and listed on the H1B
petition. Also, there must be LCAs certified for the job locations and
qualifying employment when the H1B petition is filed. Changes of locations
and new LCAs cannot be submitted in response to a Request for Evidence
(RFE), if the RFE is asking for proof of the existence of a proper H1B
position at the time of filing.
©MurthyDotCom
If an H1B worker will
be working on specific projects, there should be evidence of that in the
form of contracts, purchase orders, or statements of work with the actual
end client. Without proving the existence of the work to be performed
through independent evidence, the H1B petition could be denied. The USCIS
and DOL are concerned about fraud and misuse of the H1B system and the
failure of some employers, particularly consulting companies, to pay the H1B
employees the required prevailing wage and sending them to work
in location/s other than those listed on the LCA/s.
©MurthyDotCom
Murthy Law Firm Can Support You and Your
Business
©MurthyDotCom
Although this
overview addresses basic H1B issues, it is obvious that seemingly simple
H1Bs can be complex. The U.S. Department of Labor is increasing enforcement
efforts aimed at LCA violations. The USCIS is scrutinizing petitions and
potential H1B employers in great detail, and issuing increased Requests for
Evidence (RFEs) as well as denials. The risk is greater when there is an
inconsistency in the documents and flaws in the filings. It is always
helpful to have the best legal team on your side! The Murthy Law Firm is
experienced in assisting a wide range of businesses, large and small,
including consulting companies, with the preparation and filing of H1B
petitions. We have successfully obtained approvals of H1B cases for all
types of employers and in a wide range of eligible occupations. Our
attorneys advise the employers and prospective employees on the legal
requirements for obtaining approval of the H1B and the types of documents
and information required by the USCIS. Given the complexity and scrutiny
associated with the H1B program it is important that each H1B petition be
well prepared to facilitate filling the business’s need for a particular
worker. We at the Murthy Law Firm are already preparing to handle H1B cases
that must be filed by April 1, 2009. By utilizing procedures that emphasize
attention to detail and service to our clients, we are able to maximize
success in the H1B petitions we file to help your business thrive and
succeed in this difficult economy. We look forward to working with you to
help you succeed in your business endeavors!
©MurthyDotCom
"We know immigration matters!"
SM
Copyright © MURTHY LAW
FIRM. All Rights Reserved
|
|
Employer
Teleconferences
Learn about our teleconference series, expressly addressing the concerns
of employers.
|
