H-1B Visas
Dylan Sugiyama
International Employment Specialist
North Carolina Office of State
Personnel
AGENDA
Define H-1B and eligibility requirements
Provide an overview of I-129 form
Describe the components of a complete
H-1B petition
Fees
Prevailing Wage
Agenda (Cont.)
Labor Conditions Application
Employee qualifications and
equivalencies
Numerical limitations
Willful violators and H-1B dependent
employers
Petition approvals, denials, extensions,
amendments, etc.
Nonimmigrant
A person who temporarily travels to the
United States to work or visit
These people attest to Immigration
Services that they plan to return to their
home country in the near future
What is an H-1B Visa?
Common nonimmigrant visa for working
professionals
Alien coming to the United States to
perform services in a specialty
occupation
Specialty Occupation
Requires a bachelor’s degree or higher
as a minimum for entry into position
Specialty Occupation
Degree requirement is common to the
industry in similar positions among
similar organizations
Specialty Occupation
The employer must normally require a
degree or its equivalent, or the nature
of the specific duties are so complex
that a bachelor’s degree is associated
with the attainment of the required
knowledge
Specialty Occupation
Must utilize federal immigration
qualification equivalency standards in
making credential equivalency
determinations
Equivalency standards ordinarily used
by the state may not be the same
Specialty Occupation-Evidence
Submit resumes of other employees
who currently hold or who have held
this position in the past
Submit a statement from the
Occupational Outlook Handbook,
showing that the position generally
requires at least a Bachelor’s degree
Specialty Occupation-Evidence
Occupational Outlook Handbook can
also be used to show that a specific
type of degree is required for the
position
H-1B Initial Evaluation
Analyze the candidate’s current visa
status:
What type of visa do they have?
How long have they been in that
status?
Can this person legally continue to work
in H-1B visa status for an adequate
amount of time?
H-1B Initial Evaluation (Possibility
#1)
Candidate has not yet worked in H status:
These people are counted against
numerical visa limitations
Depending on the time of year, visa
numbers may be exhausted, and
therefore, a visa might not be available
for this person
H-1B Initial Evaluation (Possibility
#2)
Candidate is already in H Classification
Person who already possesses an H visa
may change employers without having
their new petition count against
numerical limitation
If candidate is still eligible to work for
an adequate amount of time in H
status, proceed with petition
H-1B Initial Evaluation
Check to see if yearly cap has been
reached at:
http://uscis.gov/graphics/services/tempbe
nefits/cap.htm
H-1B Initial Evaluation
Consider these questions in your
evaluation:
What are your agency’s budget
constraints?
How long does it take to train?
How expensive is it to train?
Are there similarly qualified United
States workers who won’t require visa
sponsorship?
THE I-129 FORM
Basic Nonimmigrant Visa Application
Used for all Nonimmigrant Visas, not
just H-1B
Tells Immigration which type of
nonimmigrant visa you are requesting
The I-129 Form: Biographic
Information
As an agency sponsor, do not write
anything in the “family name” section
Enter the Agency name and address in
“Company or Organization”
Enter Employer Identification Number
The I-129 Form: What do you
want Immigration to do?
Are you petitioning for a new employee,
or is this a renewal?
Are you asking Immigration to amend a
previous petition?
Are you asking Immigration to change a
candidate’s visa status (i.e., form a
student visa to an H-1B)?
The I-129 Form: Who is the
alien?
What is the employee’s name/address?
What is the employee’s immigration
history?
The I-129 Form: Immigration
History
How many times has this person
applied for this type of visa?
Has this person ever applied for a green
card?
If this person has applied for a green
card, are they eligible for a temporary
visa (i.e., do they intend to leave the
U.S. upon the expiration of the H-1B)?
The I-129 Form: Job Information
What will this person be doing?
How much will you pay this person?
Are you providing the same benefits to
this person as you are to American
workers?
The I-129 Form: Employer’s
Signature
You are verifying the accuracy of all
included information
I-129 H Supplement Forms
Supplement states that petitioner’s
intention is to apply for an H-1B
nonimmigrant visa.
Form details job specific information
that should be consistent with generic
I-129 form
H-1B Fee Determination and
Numerical Limitation Form
Used to calculate fee amounts.
When do I file?
Petitions for an H-1B visa may not be
filed more than 6 months before the
date on which the employee will
actually begin service.
For How Long are H-1B Visas
Valid?
Visas are valid for up to 3 years
May be renewed for 3 additional years
After 6 years in H-1B status, person must
leave the U.S. for one year before he/she
is eligible again (EXCEPTION TO THIS
WILL BE NOTED LATER)
Components of a complete H-1B
petition
Completed I-129 and supplements
Evidence that the Labor Condition
Application has been filed with the
Department of Labor
Evidence showing the proposed
employment qualifies as a specialty
occupation
Components of a complete H-1B
petition (cont.)
Evidence showing that the alien has the
required degree
Copy of the degree
Copy of foreign degree and equivalence
certification
Evidence of education and experience that
is equivalent to a U.S. degree
Components of a complete H-1B
petition (cont.)
Copy of any required license or other
official permission to practice the
occupation in the state of intended
employment
Copy of a written contract between
employer and employee
INDEPENDENT CONTRACTOR
A person who carries on independent
business, contracts to do a piece of
work according to their own means and
methods and is subject to control only
as to results, and for whom the
employer does not set work hours or
provide necessary tools to do the job,
or whom the employer does not have
authority to hire and fire.
Components of a Complete H-1B
Petition (Cont.)
Previous immigration documents
Previous visa stamps
I-94 cards
Copies of passports
H-1B Fees
I-129 Filing fee of $320
$1500 additional H status filing fee
$500 Security fee
If necessary or desired, $1000 additional fee
for premium processing (requires decision
within 14 days)
H-1B Fees
Application fees are paid by the
employer
Employer can not ask employee to
repay application fees
If an attorney is hired, the attorney’s
fees are paid by the employer
$1500 Fee not required when…
Petition is being amended and does not
request an extension of stay
Filed for the sole purpose of correcting
a service error
Petition is the second or subsequent
request for an extension of stay
Exemptions from $1500 fee
An institution of higher education
A nonprofit organization associated with
an institution of higher education
Data Collection and Fee
Exemption Form
If you are not sure about what fees you
should be paying, this form determines
whether the employer is exempt from
paying the additional filing fees
Liability for Transportation Costs
Employer is liable for reasonable costs
of return transportation if the alien is
dismissed from employment before the
end of the period of authorized
admission
Liability for Transportation Costs
If the alien voluntarily terminates his or
her employment prior to the expiration
of the validity of the petition, the alien
has not been dismissed
Determining Salary
Must determine exact salary before
agreeing to sponsor an H-1B
Salary must be equal to or greater than
the prevailing wage
Determining Salary
If you know that your agency can not
afford to pay the prevailing wage, you
are not permitted to hire a worker on
an H-1B visa
If you pay American workers more than
the prevailing wage, you must pay an
H-1B worker at least what you pay
similarly qualified Americans
Determining Salary
Rate of pay per year only includes
money paid to the worker
Salary does not include a cash value of
benefits given to an employee
Determining Salary
After salary has been determined:
Make sure that you have posted or sent
your notice of filing an LCA
You must inform your American workers
of your intent to hire an alien worker
Prevailing Wage Demo
http://www.flcdatacenter.com/OesWizard
Start.aspx
PREVAILING WAGE LEVEL
STEP 1:
Go to O*Net online
(http://online.onetcenter.org)
Look up appropriate job title by SOC code
Select the O*Net position that most closely
matches the employer’s position
Prevailing wage level
Review the tasks, knowledge, etc., to
gain an understanding of what is
generally required for successful
performance in that occupation
Prevailing Wage Level
Step 2: Experience
Compare the overall experience
described in the O*Net Job Zone to
experience required by the job
Add wage level points for any
experience requirements above the
O*Net job zone requirements
Prevailing Wage Level
Step 3: Education
Compare the education generally
required for the occupation as
described in the O*Net to that required
by the employer
If the education required by the
employer is more than what is required
in the O*Net description, add points to
the wage level
Prevailing Wage Level
Step 4: Special Skills
Compare the special skills generally
required for the occupation as
described in the O*Net to those
required by the employer
If the special skills required by the
employer are more than what are
required in the O*Net description, add
points to the wage level
Prevailing Wage Level
Step 5: Licensure
Compare the licenses generally required
for the occupation as described in the
O*Net to those required by the
employer
If the licensure requirement by the
employer is more than what is required
in the O*Net description, add points to
the wage level
Prevailing Wage Level
Step 6: Supervisory Duties
Compare the supervisory responsibilities
generally required for the occupation as
described in the O*Net to those
required by the employer
If the supervisory responsibilities
required by the employer are more than
what is required in the O*Net
description, add points to the wage
level
Labor Conditions Application
(LCA)
Before filing an H-1B application, the
employer must first obtain a
certification from the Department of
Labor that it has filed a labor condition
application
LCA (cont.)
The employer is required to make several
attestations to the Department of Labor
in order to prove that the H-1B
employee is being appropriately treated
Wage
Working Conditions
Strike, lockout or work stoppage
Notice
LCA Attestation #1
Wage Attestation
The employer attests that H-1B
employee will be paid wages equal to or
higher than those paid to all other
individuals with similar experience and
qualifications.
LCA Attestation #1 (Cont.)
Wage Attestation
You must continue to pay an H-1B
alien, even if they are between projects
(nonproductive time)
You must offer similar raises and
bonuses to an H-1B worker to those
that you offer to American workers
LCA Attestation #2
Working Conditions
The employer attests that the
employment of H-1B nonimmigrants in
the named occupation will not adversely
affect the working conditions of U.S.
workers similarly employed.
LCA Attestation #2 (Cont.)
You are adversely affecting American
working conditions if you:
Pay foreign nationals less than
Americans
Offer fewer benefits to foreign nationals
Implement stricter work requirements
on foreign nationals without offering
them higher pay
LCA Attestation #3
Strike, Lockout or Work Stoppage:
The employer attests that on the date
the LCA is signed, there is not a strike,
lockout or work stoppage occurring.
If one of these events occurs after the
LCA is submitted, the employer must
notify DOL within 3 days
Event must be over before LCA can be
used in support of an H-1B application
LCA Attestation #4
Notice
Employer attests that, as of the filing
date, notice of the labor condition
application has been provided to
workers employed in the named
occupation
LCA Attestation #4 (Cont.)
Notice
Notice of the application shall be
provided to workers by physical posting
in a conspicuous location, where the H-
1B worker will be employed
Notice can be given electronically
LCA Attestation #4 (Cont.)
Notice shall be given within 30 days
before the date the LCA is filed
Shall remain posted for 10 days
Notice given by e-mail need only be
given once
LCA
Each H-1B nonimmigrant must be
supplied with a copy of the certified LCA
LCA
While an approved LCA is valid, it can
be used for additional alien workers
Use photocopies of the same
application
Employer LCA Penalties
If employer fails to meet LCA conditions:
Immigration Service shall not approve
petitions filed with respect to that
employer for a period of at least one
year
LCA DEMO
http://www.lca.doleta.gov/
PUBLIC ACCESS FILES
Must be created within 1 working day of
the LCA being filed
Includes:
Copy of the approved LCA
Evidence of the wage rate
Explanation of the wage determination
(State pay grade)
Public Access Files (Cont.)
Prevailing Wage Source
Documentation proving the notice
requirement has been fulfilled
Summary of benefits provided to all
employees in similar paygrades
Public Access Files (Cont.)
The public access file must be
maintained for a period of one year
beyond the end of the employment
period stated in the LCA.
Employee Qualifications
Employee must:
Hold at least a Bachelor’s degree or an
equivalent foreign degree
If necessary, hold an unrestricted State
license, registration or certification
which authorizes him or her to fully
practice the specialty occupation
Employee Qualifications
Alien’s degree must be in a discipline
that is directly connected to the
successful completion of the duties of
the proposed position
Employee Qualifications
Employee may possess education,
specialized training and progressively
responsible experience that is
equivalent to the completion of a U.S.
Bachelor’s degree
Credential Equivalency
Employees may substitute experience
for education
Experience must be evaluated by an
accredited agency, and that agency
must submit a certified report of the
equivalence
Credential Equivalency
Credential evaluation fees
These are not fees that should be paid
by the agency
The evaluation is the property of the
alien, and the expense should be
incurred by the alien
Methods of Equivalence
Evaluation from an official with
authority to grant college level credit at
an accredited College or University
This school must possess a program for
granting such credit
Methods of Equivalence
Results of a recognized college level
equivalency examination or special
credit program
College Level Examination Program
(CLEP)
Program on Noncollegiate Sponsored
Instruction (PONSI)
Methods of Equivalence
Evidence of certification from a
nationally recognized professional
association
Immigration Service Method of
Equivalence
Bachelors degree
Three years of specialized training/
experience must be demonstrated for
each year of college level training the
alien lacks
Masters Degree
Bachelors degree followed by at least five
years of experience in the specialty
Proving Credentials
The immigration service often requests
that credentials be verified.
You should submit evidence of
credential verification with the visa
application
Documentation Used to Prove
Credentials
Two recognized authorities in the same
specialty occupation
Membership in a recognized association
related to the specialty occupation
License to practice the specialty
occupation
Examples of Qualification
Documentation (Not an exclusive list)
School records
Diplomas
Degrees
Affidavits
Contracts including dates of previous
employment
Qualification Documentation
Affidavits from former employers must
describe the beneficiary’s expertise and
specifically describe former duties
Ask the employee to get these
affidavits, as many employers will only
verify dates of employment
Licensure
If an occupation requires a license, it
must be obtained by the worker before
the approval of the petition
Temporary licenses are allowed at the
discretion of the Immigration Service
Temporary Licensure
If an alien is working with a temporary
license, the H-1B petition will only be
valid for one year.
After one year, the worker must
possess full licensure, or the renewal
will be denied
Multiple Work Locations
A petition that requires services to be
performed in more than one location
must
Include an itinerary with dates and
locations of the work sites and projects
Be submitted to the Immigration office
that has jurisdiction over the employers
main office
Amended Petition
Employer must file an amended petition
to reflect any material changes in the
terms and conditions of employment
Amended petition must include a new
approved Labor Conditions Application
(LCA)
Numerical Limitations
65,000 H-1B visas per fiscal year
20,000 additional visas for candidates
who possess at least a Master’s degree
from an accredited United States
college or university
Numerical Limitations
Extensions of stay not counted against
numerical limitation
Employee’s dependents are not counted
against numerical limitation
When numbers are used, additional
applications and fees are returned to
sender
Numerical Limitations Do Not
Apply
Extend the amount of time of a current H-1B
Change of H-1B employer
Change in terms of H-1B employment:
Length of employment
Salary
Job description
Allow H-1B worker to hold an additional position
REMEMBER: H-1B Initial
Evaluation
Check to see if yearly cap has been
reached at:
http://uscis.gov/graphics/services/tempbene
fits/cap.htm
H-1B Dependent Employers and
Willful Violators
Employers who are categorized as H-1B
dependent or as willful violators are
subject to additional attestations to the
Department of Labor
H-1B Dependent Employer
Has 25 or fewer full-time employees
who are employed in the U.S., and
employs more than seven H-1B workers
H-1B Dependent Employer
Has at least 26 but not more than 50
full-time employees employed in the
U.S. and employs more than 12 H-1B
workers
H-1B Dependent Employer
Has at least 51 full time employees in
the U.S., 15% of whom are H-1B
workers
Willful Violator
Employer who has willfully failed to
meet a condition of the Labor Condition
Application
H-1B Dependent Employer & Willful
Violator: Additional Attestations
Displacement: Non-displacement of the U.S.
workers in employer's work force
Occurs when an employer has laid off
employees, and within 90 days attempts
to hire an H-1B worker
H-1B Dependent Employer & Willful
Violator: Additional Attestations
Secondary Displacement: Non-displacement
of U.S. workers in another employer's
work force
H-1B employer is a dependent or a willful
violator and attempts to place an H-1B
with an affiliated non-dependent employer
that has, in fact, laid off within the last 90
days.
H-1B Dependent Employer & Willful
Violator: Additional Attestations
Recruitment and Hiring: Recruitment of
U.S. workers and hiring of U.S. worker
applicant(s) who are equally or better
qualified than the H-1B
nonimmigrant(s)
H-1B Dependent Employer & Willful
Violator Additional Attestations
Employer must take good faith steps to
recruit U.S. workers using industry wide
standards
Must offer a job to any U.S. worker who
is equally or better qualified than the H-
1B worker
Employees Exempt from
Additional Attestations
“Priority Workers” are exempt from the
recruitment and hiring attestation.
“Priority Workers” are defined as persons
with extraordinary ability, outstanding
professors or researchers, or certain
multinational managers or executives.
Employees Exempt from
Additional Attestations
Receives wages (including bonus) of at
least $60,000 or;
Has attained a master’s degree or
higher (or equivalent) in a specialty
related to the intended position
H-1B Portability
H-1B portable foreign nationals may
begin work for a new employer upon
filing of a new H-1B petition
H-1B applicant must show the new
employer a receipt for filing a new H-1B
application before he or she left his/her
former employer
Audits and Penalties
The U.S. Department of Labor is responsible for
enforcing the LCA requirements. Consequently, the
DOL can conduct an LCA investigation on its own or
in response to a complaint made by any affected
party (complaints must be filed no later than 12
months after the alleged violation). If the employer
willfully and knowingly violates the requirements,
then penalties will apply. Possible penalties range
from $1000 fine to $35,000 and from one year to
three years debarment (elimination) from filing H1B
visa requests.
Job Reclassification = Amended
Petition
Must file a revised form I-129 showing
details of job change
Must file a new LCA to accompany the
application
Fees are reduced for a revised application
Approval Notices
Issues on form I-797
Decisions will not be made earlier than 6 months before
the date of actual need of the visa
Includes
Name
Classification
Period of validity
Approval Notices
Check for approvals online at:
https://egov.immigration.gov/cris/caseSta
tusSearchDisplay.do;jsessionid=bjQCu6
ZbZCY_
Validity of H-1B Visa
If approved before the date the petitioner
indicates as the employee’s start date, the
approval notice shall show the actual dates
requested
If approved after the date the petitioner
indicates as the employee’s start date, start
date will typically be the approval date
Admission of Alien Worker
Worker may enter the United States 10 days
prior to the validity period of the H-1B visa
Must leave the United States within 10 days
after the expiration of the visa
Alien may not work during 10 day grace
periods
Extension of H-1B
Additional supporting documentation is
not required
New prevailing wage determination is
necessary
Extension may only be filed if the
original petition has not yet expired
Period of Stay
When an alien has reached the
maximum allowable stay in H status, a
new H petition will not be approved
unless the alien has resided outside of
the United States for one year
Exception to 6 Year Limit
If an alien has made an application for
a green card, and that application has
been pending for at least one year, that
person may continue to file for
extensions of his or her H-1B visa in
one year intervals
Denial of H-1B Petition
Immigration Service will notify employer
of its intent to deny
Employer may rebut the evidence the
Service offers in its intent within 30
days of service of the notice
Denial of H-1B Petition
Employer will be informed of reasons
for the denial
Appeal is available for denial of an
original petition
No appeal is available for the denial of
an extension petition
Revocation of an H-1B
Two types of revocation
Revocation on notice
Automatic revocation
Revocation of an H-1B Petition
(Cont.)
Immigration Service may revoke at any time
Revocation is automatic if
Employer files a written withdrawal
Employer ceases to exist
Revocation of an H-1B Petition
(Cont.)
Revocation on notice
Worker is no longer employed in the
position
Statements included in the petition were
not true
Employer violated conditions of the
approved petition
The approval was made in error
Revocation of an H-1B Petition
(Cont.)
Employer may submit rebuttal evidence
within 30 days of receipt of notice of
intent to revoke
Automatic revocations may not be
appealed
Petitions revoked on notice may be
appealed
Employment of Foreign Nationals
Website
http://www.osp.state.nc.us/hr/Foreign%20
Nationals/fnfaq.htm
QUESTIONS?