Tips for the H-1B Employer

Hannah F. Little, Esq., Partner
N.C. Board Certified Immigration Law Specialist
Hannah.Little@garfinkelimmigration.com

My Dream Candidate Needs an H-1B - Now What?

Employers often find themselves in a common dilemma. They have found the dream candidate for a position but she cannot begin work immediately because she requires sponsorship for the H-1B visa. What does this mean for the employer?

The first thing every employer should know is there are a limited number of H-1B visas available each fiscal year and given the high demand for these visas, it is likely there is not a new H-1B visa currently available for this dream candidate.

On Tuesday, April 1, 2015, US Citizenship and Immigration Services ("USCIS") will begin to accept new H-1B petitions with an employment start date of October 1, 2015. USCIS received approximately 170,000 H-1B petitions for a cap of 85,000 available visas during the last filing period and used a computer-generated random selection process (commonly known as a "lottery") to select the number of petitions needed to meet the cap. There are certain employers who are exempt from the cap including institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. In addition, cap-exempt status is available if the employee will be working for the employer at an institution of higher education and her work will directly further the normal, primary, or essential purpose or objectives of the institution.

Once an individual is approved for H-1B status and is counted against the "cap," she is considered exempt from the cap for purposes of changes in employer, amendments, and/or extensions.

Once the candidate has disclosed she will require sponsorship, the employer should inquire into her current status to determine whether she currently holds H-1B status pursuant to a cap subject petition. If so, the employer may file a "change of employer" petition with USCIS to "transfer" the dream candidate's H-1B from her previous employer. Pursuant to the American Competitiveness in the 21st Century Act, the dream candidate may begin working for the new employer upon the filing of the H-1B change of employer petition.

If not, the employer should consult with immigration counsel regarding other visa options.

You Want Me to Pay What? The Prevailing Wage Requirement

The H-1B employer is required to pay the H-1B employee the higher of the prevailing wage level for the occupational classification in the area of intended employment or the actual wage rate paid to its other employees with similar experience and qualifications for the specific employment in question. Typically, the prevailing wage is determined by consulting the Department of Labor's Occupational Employment Statistics (OES) program which determines the arithmetic mean of the wages of workers similarly employed in the area of intended employment. Each position has four levels (entry-level to advanced) with corresponding wages; higher minimum requirements for a position correlate to a higher wage. Occasionally, employers run into an issue when the "prevailing wage" is much higher than the actual wage paid to other employees.

If this issue occurs: review the DOL job description to ensure you have selected the appropriate classification for the position, review the minimum requirements for the position, or rely on an alternate wage survey.

What is a Public Inspection File?

H-1B employers are required to maintain specific information and documentation for each H-1B employee. To meet the regulatory requirements, it is advisable for the employer to maintain two separate Labor Condition Application ("LCA") files for each H-1B worker: a public inspection file and a DOL investigation file.

The public inspection file must be available at the worksite or the employer's principal place of business and must be retained for one year beyond the completion of H-1B employment. It should include: a copy of the certified Labor Condition Application and cover pages, a statement of the wage rate to be paid to the H-1B employee, an explanation of the "actual wage," copies of the actual Notice posted in 2 locations at your company including the dates and location it was posted, evidence the H-1B employee was given a copy of the certified LCA, and documentation regarding the employer's benefits package.

The DOL inspection file should include the wage rate for all other workers at the same job at the place of employment, the data used to establish the actual wage rate for the H-1B workers, and documentation of working conditions. While the employer is not required to maintain this file in anticipation of a DOL investigation, the employer must be ready to produce this documentation in the case of an investigation.

Help! There is Someone at My Office with a Badge

H-1B employers should be prepared for unannounced visits from the Office of Fraud Detection and National Security (FDNS). In advance, the employer should alert reception, security, and corporate counsel that such visits may occur and designate a company representative to respond to FDNS inquiries. Employers should conduct internal reviews of all H-1B workers to ensure the job duties, work site, and salaries are consistent with the information provided in the previously filed H-1B petition.

If a site visit occurs, it is advisable for the employer to request the name, title, agency, and contact information for the site investigator. The designated company representative should ensure there is a witness present when speaking to the FDNS officer and accompany the investigator during the review of the premises. Furthermore, the company representative may request to be present during interviews of other employees. Finally, if the FDNS officer requests information about the employer and the employer cannot provide accurate information without further research, the employer should indicate this to the FDNS officer and not "guess" about any information provided during the visit.

Changes in Employment

Any material change in employment requires the filing of an amended petition. This includes a change in the H-1B employee's hours, job site, and job duties. When determining whether a change in the job duties is "material", the employer should prepare a list of job duties and percentage of time spent on each for the H-1B sponsored position and the new position. If there is a difference of 50% or more between the two positions, then an amended petition is required. The H-1B visa is employer specific. Therefore, if the H-1B employee is placed on a different entity's payroll, a new H-1B petition is required, even if her job duties, worksite location, salary and hours remain unchanged.

What Should I Do If My Employee is on a Leave of Absence?

An employer's obligation when an H-1B employee takes a leave of absence depend on whether the leave is initiated by the employee or by the employer. Leaves of absence may be based on maternity, FMLA, extended sick leave, employer-imposed rehabilitation or simply the employee's personal needs.

If the leave is employee-requested, such as maternity, there are no requirements placed upon the employer. However, if the leave is employer-generated, DOL regulations require the employer to pay full salary during the leave period.

In contrast, USCIS policy focuses on whether there is an expectation of continuing employment at the conclusion of the leave of absence. If there is, then the employee maintains valid H-1B status during the leave period. If there is no expectation of continuing employment, the employee is not in valid status during the leave period. While USCIS policy does not impose a time limit on the length of the leave, both the employee and the employer should note that time continues running toward the six-year limit on H-1B status, even though the employee is on leave, unless the employee changes to a different nonimmigrant status for the duration of the leave.

Timing is Everything - Sponsorship for Permanent Resident Status ("Green Card")

First and foremost, every employer should know that sponsorship for permanent resident status is not required. However, if an employer chooses to sponsor an H-1B employee for permanent resident status by offering a permanent full-time position, it is advisable to begin this process three years before the H-1B employee will reach her six year limit to ensure the H-1B employee maintains employment authorization and immigration status beyond the six year limit.

The End of H-1B Employment - What Are My Obligations?

Once the H-1B employment has concluded, the employer's obligations depend on whether the termination is initiated by the employee or by the employer. If the employee voluntarily resigns or an employee's contract is rescinded due to visa denial, the employer is not required to take further action. However, if the employer initiates termination, the employer is liable for the employee's return costs of transportation to her home country (even if the termination was based on performance or behavior issues). The employer should also notify USCIS that the employee has left the company and request that the H-1B petition filed on her behalf be withdrawn.