H-1B PETITION AND THE LABOR CONDITION APPLICATION PROCESS – WORK VISA LAWYERS AND ATTORNEYS IN ATLANTA
MEMORANDUM
I. H-1B PETITION PROCESSING
The classification of H-lB Temporary Worker in a “Specialty Occupation” is available to any employer in the United States in order to hire foreign professionals for a temporary assignment. Foreign nationals are eligible for H-lB classification if they qualify as members of a professional occupation. This includes physicians, engineers, teachers, lawyers, nurses, scientists, and any other occupation for which attainment of at least a bachelor’s degree in a specific course of study is the usual minimum requirement for an entry-level position in the occupation. To qualify, an individual must show that he has the requisite four-year U.S. college degree or its equivalent. In addition, the foreign national must have satisfied any U.S. state licensure requirements of his particular profession before being eligible for H-lB classification. For example, in most states public school teachers, certain engineers, lawyers, physicians, dentists and nurses – be they U.S. or foreign citizens – must obtain state licenses before being authorized to practice their profession. Thus, foreign nationals without state licensure in those professions cannot obtain H-lB classification.
Not only must the H-lB foreign national satisfy the foregoing criteria, but also, the position in which he intends to work in the United States must require the employment of a person having such professional qualifications. In addition, the employer’s intent must be to hire the foreign national for only a temporary period.
The H-lB nonimmigrant can be admitted typically for an initial period of three years, with extensions available up to a maximum consecutive stay of six.
To obtain H-lB classification, the U.S. employer first must submit a Form I-129 nonimmigrant visa petition to the USCIS for its decision regarding the foreign national ‘s eligibility for H-lB classification, followed by the individual’s applying to an American embassy or consulate abroad for issuance of an H-lB visa with which he may seek entry into the United States. (This same procedure applies to the H-2 and H-3 categories as well.) The application process for the actual H visa includes presenting the Form I-797, Notice of Approval (used by the USICS for both H and L petitions). The H-lB foreign national’s spouse and minor dependent children will be eligible to apply for H-4 visas with which to accompany or join the principal H-lB foreign national in the United States.
Since passage of IMMACT ’90, H-lB specialty occupation visa holders no longer must demonstrate they have a foreign residence which they do not intend to abandon during their temporary stay in the United States; rather, H-lB workers now need express merely the generalized intent to return home after conclusion of their temporary U.S. assignment.
In addition, the H-lB category is now subject to an annual “quota” limitation of 65,000 foreign nationals – a limitation which so far has not been exceeded but could be in the near future.
II. LABOR CONDITION APPLICATION REQUIREMENTS
Employers must file an LCA with the appropriate regional office of the Department of Labor (“DOL”), prior to the filing of both new H-1B visa petitions and applications to extend H-1B status. The LCA supposedly enables the federal government to protect the wages and working conditions of similarly employed workers in the area of employment from being adversely affected by the employment of H-1B temporary workers.
The LCA process consists of two steps. First, we must determine the prevailing wage for the occupational classification in the area of employment. This is done by filing a request with the State Department of Labor (“SDOL”). The SDOL will respond with a prevailing wage for the position. DOL generally takes approximately seven days to certify the LCA. The certified LCA must be included with the H-1B Petition which is filed with the USCIS.
A. Summary of the LCA Requirements
In filing the LCA, Form ETA 9035, the employer is attesting to the following:
-
- That for the entire period of authorized employment, the employer will offer to the H-1B foreign national(s) the higher of:
- the prevailing wage level for that specific occupational classification in the area of intended employment; or
- the actual wage level paid by the employer to all other similarly employed H-1B workers.
- That for the entire period of authorized employment, the employer will offer to the H-1B foreign national(s) the higher of:
When calculating the actual wage, only those individuals with similar experience and qualifications for the specific employment in question need be taken into consideration.
- That for the entire period of authorized employment, the employment of the H-1B worker will not adversely affect the working conditions of other similarly employed workers. “Working conditions” are defined as including “hours, shifts, vacation periods, and fringe benefits.”
- That on the date the LCA is signed and submitted, there was not a strike, lockout, or labor dispute work stoppage in the relevant occupations at the place of employment.
- The employer has provided notice of the filing of the LCA to the bargaining representative of the employer’s employees in the occupational classification, or, if there is no bargaining representative, the employer has posted notice of the filing of the LCA on the employer’s premises.
B. Retention of LCA Records for Public Access
In filing the LCA, the employer also agrees to develop and maintain documentation supporting each labor condition application statement within one working day of the filing of the LCA with DOL. This documentation must be retained on the employer’s premises for public inspection for one year beyond the end of the employment period specified on the LCA. The necessary documentation is outlined below. The following documentation must be made available on or before the day of filing of the LCA with the DOL:
- The original or a copy of the LCA form.
- Prevailing wage documentation. This will be the either the GDOL prevailing wage letter, an independent wage survey, or another legitimate source of wage information.
- The Actual Wage Memorandum stating that the wage the employer is offering the foreign national is the wage paid by the employer to all other individuals “with similar experience and qualifications for the specific employment in question.”
- The executed disclaimer evidencing the employer’s compliance with the working conditions requirement.
- The executed disclaimer evidencing the employer’s compliance with the strike/lockout condition.
- Copies of the actual posted employee notifications and employer’s certification of the postings or a copy of the dated notice that the employer provides to the collective bargaining representative.
C. Maintaining the LCA Documentation
Besides the above-mentioned binder containing the LCA documentation, the employer must, at the employer’s principal place of business in the United States, or at the place of employment, make payroll record documentation available for inspection by the DOL upon investigation of a complaint. Note that actual payroll records showing the rate of pay to the prospective H-1B foreign national need not be made available for public examination. This documentation must be retained by the employer for a period of three years from the date of the creation of the records, except that if a timely complaint is filed, the employer must retain the records until the complaint is resolved. The documents that must be maintained are as follows:
Payroll records for all other individuals with experience and qualifications similar to the prospective H-1B foreign national in the position at the place of employment, beginning with the date the LCA is submitted and continuing throughout the period of employment. The payroll records for each employee must include:
- Employee’s full name;
- Employee’s home address;
- Employee’s occupation;
- Employee’s rate of pay;
- Hours worked each day and each week by the employee if paid on other than a salary basis or if the prevailing or actual wage is expressed as an hourly wage;
- Total additions to or deductions from each pay period;
- Total wages paid each pay period, date of pay, and pay period covered by each payment.
D. Finalizing the Process
- Federal law requires DOL to make the determination to certify or not certify the LCA within seven days of filing. Once the LCA has been certified by DOL, the H-1B Petition is filed with the USCIS. Remember that the law prohibits an employer from employing an foreign national as an H-1B worker until the USCIS approves the H-1B Petition, and either USCIS approves the corresponding application for change of status to H-1B classification, or a U.S. consular officer abroad grants the H-1B visa and the foreign national enters the U.S. in H-1B status, unless the foreign national already has employment authorization under a different category.
- Once the LCA has been certified, it is vital that the company contact us immediately if the foreign national does not begin, or prematurely leaves, employment with the company. Unless the certified LCA is formally withdrawn, the company will continue to be bound by the wage, working condition, strike/lockout, and notice statements in the LCA.
- Prevailing wage level information must be updated every 36 months, the duration of the LCA.
E. Employer Considerations Associated with Filing an LCA
Currently, the LCA procedure is complaint driven; that is, an investigation into the accuracy of the LCA will occur only if a complaint is filed by an aggrieved party. If a complaint is filed, the DOL Wage and Hour Administrator (the “Administrator”) will investigate the complaint and determine whether the employer failed to meet a condition specified in the LCA or misrepresented a material fact.
Under the new regulations, DOL can initiate its own investigations without a formal complaint. Obviously, this creates a greater problem for employers, who now must be sure to comply fully with all document retention requirements.
In the event that the Administrator determines that the employer made a misrepresentation of a material fact in the application, or that the employer does not meet the applicable standard regarding each of the attestation elements, the Administrator may (1) impose a $1,000 fine per violation; (2) bar the employer from obtaining future visas (both for immigrants and H, L, O, and P nonimmigrants) for a period of at least one year; and (3) order the employer to provide for payment of back wages. Any interested party may, within 15 days from the date of the investigative determination, request a hearing before an Administrative Law Judge. If no request for hearing is made, the determination of the Administrator becomes final.
Material misrepresentation on the LCA can also subject the company itself and the individual company representative signing the LCA to penalties for perjury including fines against the company and fines and incarceration of the individual representative of the company. Obviously, the care taken in preparing the LCA is intended to eliminate the risk of misrepresentation and the imposition of any of these penalties.
H-1B PETITION AND THE LABOR CONDITION APPLICATION PROCESS
MEMORANDUM
The purpose of this memorandum is 1) to provide you with detailed background information regarding the qualifications for an H-1B visa, and 2) the specific requirements of the Labor Condition Application (“LCA”) process, so that you may employ a foreign national in the H-1B nonimmigrant visa category.
I. H-1B PETITION PROCESSING
The classification of H-lB Temporary Worker in a “Specialty Occupation” is available to any employer in the United States in order to hire foreign professionals for a temporary assignment. Foreign nationals are eligible for H-lB classification if they qualify as members of a professional occupation. This includes physicians, engineers, teachers, lawyers, nurses, scientists, and any other occupation for which attainment of at least a bachelor’s degree in a specific course of study is the usual minimum requirement for an entry-level position in the occupation. To qualify, an individual must show that he has the requisite four-year U.S. college degree or its equivalent. In addition, the foreign national must have satisfied any U.S. state licensure requirements of his particular profession before being eligible for H-lB classification. For example, in most states public school teachers, certain engineers, lawyers, physicians, dentists and nurses – be they U.S. or foreign citizens – must obtain state licenses before being authorized to practice their profession. Thus, foreign nationals without state licensure in those professions cannot obtain H-lB classification.
Not only must the H-lB foreign national satisfy the foregoing criteria, but also, the position in which he intends to work in the United States must require the employment of a person having such professional qualifications. In addition, the employer’s intent must be to hire the foreign national for only a temporary period.
The H-lB nonimmigrant can be admitted typically for an initial period of three years, with extensions available up to a maximum consecutive stay of six.
Since passage of IMMACT ’90, H-lB specialty occupation visa holders no longer must demonstrate they have a foreign residence which they do not intend to abandon during their temporary stay in the United States; rather, H-lB workers now need express merely the generalized intent to return home after conclusion of their temporary U.S. work assignment.
In addition, the H-lB category is now subject to an annual “quota” limitation of 65,000 foreign nationals – a limitation which so far has not been exceeded but could be in the near future.
II. LABOR CONDITION APPLICATION REQUIREMENTS
Employers must file an LCA with the appropriate regional office of the Department of Labor (“DOL”), prior to the filing of both new H-1B visa petitions and applications to extend H-1B status. The LCA supposedly enables the federal government to protect the wages and working conditions of similarly employed workers in the area of employment from being adversely affected by the employment of H-1B temporary workers.
The LCA process consists of two steps. First, we must determine the prevailing wage for the occupational classification in the area of employment. This is done by filing a request with the State Department of Labor (“SDOL”). The SDOL will respond with a prevailing wage for the position. DOL generally takes approximately seven days to certify the LCA. The certified LCA must be included with the H-1B Petition which is filed with the USCIS.
A. Summary of the LCA Requirements
In filing the LCA, Form ETA 9035, the employer is attesting to the following:
-
- That for the entire period of authorized employment, the employer will offer to the H-1B foreign national(s)
the higher of:- the prevailing wage level for that specific occupational classification in the area of intended employment; or
- the actual wage level paid by the employer to all other similarly employed H-1B workers.
- That for the entire period of authorized employment, the employer will offer to the H-1B foreign national(s)
- When calculating the actual wage, only those individuals with similar experience and qualifications for the specific employment in question need be taken into consideration.
- That for the entire period of authorized employment, the employment of the H-1B worker will not adversely affect the working conditions of other similarly employed workers. “Working conditions” are defined as including “hours, shifts, vacation periods, and fringe benefits.”
- That on the date the LCA is signed and submitted, there was not a strike, lockout, or labor dispute work stoppage in the relevant occupations at the place of employment.
- The employer has provided notice of the filing of the LCA to the bargaining representative of the employer’s employees in the occupational classification, or, if there is no bargaining representative, the employer has posted notice of the filing of the LCA on the employer’s premises.
B. Retention of LCA Records for Public Access
In filing the LCA, the employer also agrees to develop and maintain documentation supporting each labor condition application statement within oneworkingday of the filing of the LCA with DOL. This documentation must be retained on the employer’s premises for public inspection for one year beyond the end of the employment period specified on the LCA. The necessary documentation is outlined below. The following documentation must be made available on or before the day of filing of the LCA with the DOL:
- The original or a copy of the LCA form.
- Prevailing wage documentation. This will be the either the GDOL prevailing wage letter, an independent wage survey, or another legitimate source of wage information.
- The Actual Wage Memorandum stating that the wage the employer is offering the foreign national is the wage paid by the employer to all other individuals “with similar experience and qualifications for the specific employment in question.”
- The executed disclaimer evidencing the employer’s compliance with the working conditions requirement.
- The executed disclaimer evidencing the employer’s compliance with the strike/lockout condition.
- Copies of the actual posted employee notifications and employer’s certification of the postings or a copy of the dated notice that the employer provides to the collective bargaining representative.
C. Maintaining the LCA Documentation
Besides the above-mentioned binder containing the LCA documentation, the employer must, at the employer’s principal place of business in the United States, or at the place of employment, make payroll record documentation available for inspection by the DOL upon investigation of a complaint. Note that actual payroll records showing the rate of pay to the prospective H-1B foreign national need not be made available for public examination. This documentation must be retained by the employer for a period of three years from the date of the creation of the records, except that if a timely complaint is filed, the employer must retain the records until the complaint is resolved. The documents that must be maintained are as follows:
Payroll records for all other individuals with experience and qualifications similar to the prospective H-1B foreign national in the position at the place of employment, beginning with the date the LCA is submitted and continuing throughout the period of employment. The payroll records for each employee must include:
- Employee’s full name;
- Employee’s home address;
- Employee’s occupation;
- Employee’s rate of pay;
- Hours worked each day and each week by the employee if paid on other than a salary basis or if the prevailing or actual wage is expressed as an hourly wage;
- Total additions to or deductions from each pay period;
- Total wages paid each pay period, date of pay, and pay period covered by each payment.
D. Finalizing the Process
- Federal law requires DOL to make the determination to certify or not certify the LCA within seven days of filing. Once the LCA has been certified by DOL, the H-1B Petition is filed with the USCIS. Remember that the law prohibits an employer from employing an foreign national as an H-1B worker until the USCIS approves the H-1B Petition, and either USCIS approves the corresponding application for change of status to H-1B classification, or a U.S. consular officer abroad grants the H-1B visa and the foreign national enters the U.S. in H-1B status, unless the foreign national already has employment authorization under a different category.
- Once the LCA has been certified, it is vital that the company contact us immediately if the foreign national does not begin, or prematurely leaves, employment with the company. Unless the certified LCA is formally withdrawn, the company will continue to be bound by the wage, working condition, strike/lockout, and notice statements in the LCA.
- Prevailing wage level information must be updated every 36 months, the duration of the LCA.
E. Employer Considerations Associated with Filing an LCA
Currently, the LCA procedure is complaint driven; that is, an investigation into the accuracy of the LCA will occur only if a complaint is filed by an aggrieved party. If a complaint is filed, the DOL Wage and Hour Administrator (the “Administrator”) will investigate the complaint and determine whether the employer failed to meet a condition specified in the LCA or misrepresented a material fact.
Under the new regulations, DOL can initiate its own investigations without a formal complaint. Obviously, this creates a greater problem for employers, who now must be sure to comply fully with all document retention requirements.
In the event that the Administrator determines that the employer made a misrepresentation of a material fact in the application, or that the employer does not meet the applicable standard regarding each of the attestation elements, the Administrator may (1) impose a $1,000 fine per violation; (2) bar the employer from obtaining future visas (both for immigrants and H, L, O, and P nonimmigrants) for a period of at least one year; and (3) order the employer to provide for payment of back wages. Any interested party may, within 15 days from the date of the investigative determination, request a hearing before an Administrative Law Judge. If no request for hearing is made, the determination of the Administrator becomes final.
Material misrepresentation on the LCA can also subject the company itself and the individual company representative signing the LCA to penalties for perjury including fines against the company and fines and incarceration of the individual representative of the company. Obviously, the care taken in preparing the LCA is intended to eliminate the risk of misrepresentation and the imposition of any of these penalties.
Obviously, this is not a simple process. But, with planning and care the process can be smooth and problem free. We will do everything in our power to ease the reporting and paperwork burden on the employer and the foreign national.
If you would like further information or to discuss a potential case, please call our office at 404.816.8611 to set an appointment with one of our experienced immigration attorneys, or you schedule your consultation online here.
Traveling Before H-1B Transfer Approved
It has been well established that an H-1B non-immigrant may begin working for a new employer as soon as that new employer files a “non-frivolous” H-1B petition on the nonimmigrant’s behalf. However, there has been some confusion as to whether or not the H-1B holder may travel outside of the United States after the transfer has been filed but before it has been approved.
Every H-1B holder knows that there are a number of standard questions that are always asked by the inspector when an H-1B visa holder enters the United States. Among them are “Who do you work for?” or “Are you still working for…?” The purpose of these questions is to confirm that the applicant for admission has maintained his or her status and has not fallen out of status by being unemployed for a period of time or by beginning work for a new employer without filing a transfer of the H-1B visa.
Everyone is familiar with the mantra of immigration attorneys – “Always tell the truth.” Unfortunately, many H-1B holders who travel while their transfer is pending will worry about whether or not the inspector will allow them to re-enter the United States. Perhaps the inspector in question won’t be familiar with portability. Perhaps the inspector simply won’t believe that the transfer was filed or will not be able to verify that everything has been done in accordance with the law.
In an effort to clarify the effects of AC21 §105 (the law governing H-1B transfers or “portability”), the immigration Service issued a memorandum on June 19, 2001, entitled “Initial Guidance for Processing H-1B Petitions as Affected by the American Competitiveness in the Twenty-First Century Act.” The memorandum states unequivocally that an H-1B holder, who applies for admission at a port of entry after an H-1B transfer has been filed, but before it has been approved, is admissible if they provide the following evidence:
- That the applicant is otherwise admissible;
- That the applicant, unless exempt, is in possession of a valid, unexpired passport and visa showing the name of the original petitioner;
- That the applicant was previously admitted as an H-1B or otherwise accorded H-1B status;
- That an H-1B petition was timely filed on behalf of the applicant, before the expiration of the validity dates of the applicant’s previously authorized stay.
What evidence should an applicant bring with him or her to the port of entry? It is essential for the applicant to have a valid passport. Non-immigrants should renew their passports before the passport falls within 6 months of its expiration date. Non-exempt applicants must also have an unexpired visa endorsed with the name of the original petitioner. The applicant should have the ability to provide proof that he or she was previously admitted in H-1B status or otherwise accorded H-1B status. A visa exempt applicant who is not in possession of the previously issued Form I-94, Arrival/Departure Record may submit a copy of Form I-797, Notice of Action, which notes the original petition’s validity dates. Form I-797 is the most helpful document for a successful re-entry under AC21 because it indicates that the transfer was timely filed by the new employer. In the event that an I-797 receipt notice has not been received by the petitioner, the inspector may accept other credible evidence of timely filing that can be validated through a CLAIMS query. CLAIMS is a case application and processing system used by the service for adjudication of applications and petitions for immigration benefits.
If the validity dates of the applicant’s previously approved immigration petition have expired and the inspector is not satisfied with the evidence he or she presents as proof that the new H-1B petition has been approved, the applicant will not be admissible under the portability provisions even though it has been well established that an H-1B nonimmigrant may begin working for a new employer as soon as that new employer files a “non-frivolous” H-1B petition and that he or she will not fall out of status if the previous visa expires before the new petition is approved. H-1B holders whose previously approved visa has expired should not travel.
In practice, the applicant should be as well documented as possible at the port of entry. In addition to a passport, a visa and a receipt notice; applicants for re-entry might also bring a copy of the cover letter which accompanied the petition to transfer the H-1B visa; copies of previous I-94’s; proof that the petition was received by USCIS from FedEx or USPS and even a copy of the June 19, 2001 memorandum. Proof of the new employment itself is also helpful – for example, new business cards or a print out from the new employer’s website indicating that the applicant is now employed there.
If the applicant for admission does not have a Form I-797 Notice of Action indicating that the transfer was timely filed or a CLAIMS query shows no evidence that the transfer was timely filed, the applicant is not admissible. It should be noted that in practice, some inspectors will accept the evidence described above minus the I-797 and admit the applicant without performing a CLAIMS query.
There are inspectors who are not familiar with portability. In the event that an applicant encounters such an inspector he or she may ask to speak to a supervisor or ask for deferred inspection.
A nonimmigrant applicant is admissible for the validity of the previously approved petition plus 10 days.
Applicants for admission who are dependents of non-immigrants working pursuant to portability must present the following evidence at the port of entry:
- That the dependent is otherwise admissible;
- That the dependent has an unexpired passport and visa, unless exempt;
- That the principal nonimmigrant was previously admitted in H-1B status;
- That the transfer was timely filed;
- That a qualifying relationship exists between the dependent and the principal.
Dependents should also strive to accumulate as much documentation as possible to substantiate their claim.
If you would like further information or to discuss a potential case, please call our office at 404.816.8611 to set an appointment with one of our experienced immigration attorneys, or you schedule your consultation online here.
SUPPORT DOCUMENTATION FOR H‑1B PETITION
A. CORPORATE (prospective U.S. employer):
- Certificate and Articles of Incorporation;
- Employer’s Federal Tax Identification Number;
- Current annual report and/or audited financial statement, or federal corporate income tax return;
- Lease or deed for business premises (for new businesses only);
- Any available promotional pamphlets and brochures which describe the company and its various products, service, etc;
- A complete job description for the individual’s proposed position — including a list of all job duties; title of immediate supervisor, number and title of persons supervised, and annual salary and benefits information;
- Full name and title of contact person at company who will coordinate paperwork and the full name and title of the company’s authorized signatory for documents; and
- Business Plan (for new businesses only).
B. INDIVIDUAL (Foreign national seeking H‑1B status):
- Completed Immigration Questionnaire (KC Form) and Working Visa Addendum (KC Form);
- Photocopies of individual’s passport and I-94 Card, and those of his/her immediate family members who will accompany him/her to the United States;
- Individual’s resume, curriculum vitae, etc.;
- Photocopy of individual’s university or trade school diplomas and certificates, and course transcripts, if available;
- Photocopy of individual’s professional licenses, professional society membership certificates or cards, etc; and
- Any conveniently available letters, payroll records, etc. verifying individual’s prior work history.
QUESTIONNAIRE FOR H-1B OR L-1 VISA:
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A# (if any): | Male/Female: | |||||||||||||||||||||||||||||||||||||||
Current Non-immigrant status: | Expires on: | |||||||||||||||||||||||||||||||||||||||
Have you ever before applied for permanent residence status? If so, give date and place of filing | ||||||||||||||||||||||||||||||||||||||||
and final disposition: |
Disclaimer/Reminder
This e-mail does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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