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/tempbenefits/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/OesWizardStart.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/tempbenefits/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/caseStatusSearchDisplay.do;jsessionid=bjQCu6ZbZCY_

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%20Nationals/fnfaq.htm

QUESTIONS?