An H-1B temporary worker is a foreign national who is coming temporarily tothe U.S. to perform a specialty occupation.  A specialty occupation isdefined as “an occupation that requires (A) theoretical and practicalapplication of a body of highly specialized knowledge, and (B) attainment of abachelor’s or higher degree in the specific specialty as a minimum for entryinto the occupation in the United States.” [INA214(i); 8USC 1184(i)]

For example accountants, architects, teachers (primary and secondary,excluding nursery school teachers), university professors, certain types ofnurses, attorneys, physicians, designers, and engineers will all qualify asH-1B workers. The only way to make a determination whether a particular workerwill qualify is through advice from an experienced immigration attorney.

The H-1B visa remains one of most versatile nonimmigrant employment visasutilized by U.S. businesses to hire foreign workers.  Here is a list ofissues to keep in mind when filing an H-1B petition.

Limitation on Duration of Stay and Full-Time/Part-TimeEmployment

An employer may request initial employment a maximum of 3 years.  TheH-1B can be extended.  Generally, the maximum amount of time that anindividual can hold H-1B visa status is 6 years. However, exceptions do existthat allow an H-1B extension beyond the initial6 years. An employer may petition for a foreign worker for either full-time orpart-time employment.

Prevailing Wage

The prevailing wage element requires employers to demonstrate that the wageoffered will not discriminate against US workers by offering wages that arelower than the actual wage paid similar workers. Generally prevailing wagerequirement is met by offering wages as determined submitting a Prevailing WageRequest to the State Workforce or demonstrating that a union contract is inforce. The H-1B laws require employers to pay the higher ofthe actual wage or the prevailing wage.

The Labor Condition Application (LCA)

The LCA is an application by the employer to the Department of Laborattesting to certain conditions of the position offered.  These conditionsare:

·         That the higher of actualor prevailing wage will be paid;

·         That the employee iseligible for the same benefits as other similarly employed US workers;

·         That the employee is notbeing employed because US workers are out on strike or lockout;

·         That the employment of theforeign worker will not adversely affect the working conditions of otherworkers; and

·         That proper notificationwas given to U.S. employees or the union representative if the position isunion position university’s intent to hire an H-1B non-immigrant.

The LCA must be made available for Department of Labor (DOL) and for publicinspection.  The LCA may be obtained online at www.lca.doleta.gov.

Spouse or Children of an H-1B

Spouses and children of an H-1B are eligible for H-4 visas. An H-4 is eithera spouse or unmarried children under 21 years old.  H-4 holders cannotwork in the U.S. but are eligible to attend school either part time orfull-time.  To prove the relationship to the H-1B an H-4 candidate willneed to present a marriage certificate if a spouse and a birth certificate if achild. 

Ok, when do I file?

The United States Citizenship and Immigration Service (USCIS) will acceptH-1B petitions for fiscal year 2010 on April 1, 2009 for jobs starting onOctober 1, 2009.  It is important to file April 1, 2009 since H-1B visasare capped at 65,000 per year and the last two years the cap was met within oneweek.  As such, early document preparation is essential to making timelyfiled H-1B petitions.

I’m Ready to File … Where?

A petition is filed with either California Service Center or Vermont ServiceCenter depending on where the temporary employment will be The CaliforniaService Center is appropriate for employment in the following states: Arkansas,Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa,Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota,Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, or Wyoming.

A petition is filed with the Vermont Service Center if the temporary workwill be performed in: Alabama, Arkansas, Connecticut, Delaware, the District ofColumbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland,Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York,North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, SouthCarolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, or WestVirginia.

When the temporary employment will be in different states, the state whereyour company is located will determine the Service Center for submission of thepetition.  For example, if the beneficiary will work in Arizona and Texas,and your company is located in California, file your H-1B petition with theCalifornia Service Center.

Sounds Great … How Much is this Going to Set me Back?

As of the time this article is published, an employer must pay for the H-1BForm I-129 filing fee ($320), H-1B Training Fee of either $750 or $1500depending on the size of your company, and a Fraud Prevention and Detection Fee($500). All employers must pay these fees unless an employer qualifies forexemption from the H-1B Training Fee.

If a company currently employs 1-25 full-time equivalent employees, the H-1BTraining Fee is $750.  Companies who employ more than 25 full-timeequivalent employees will need to pay $1500.  The employer must pay theH-1B Training Fee upon the initial hire and the first H-1B extension of thesame employee.  The H-1B Training Fee is not required for second orsubsequent petitions for H-1B extension.  The Fraud Prevention andDetection fee needs to be paid when the employer initially hires the employeeeven if he or she is currently working as an H-1B with anotheremployer. 

A simple way to remember this is that every employer needs to pay for theH-1B Training Fee twice for each H-1B employee and the H-1B Fraud Preventionand Detection Fee needs to be paid once for each H-1B employee. Fees aresubject to change so it is important to make sure of the proper fees beforefiling.

Filing Procedure

Documents are filed with the USCIS service center having jurisdiction overthe petitioner (see filing locations above).  The petitioner must sendForm I-129, I-129 supplement forms, an approved Labor Condition Application,support document about the petitioner’s business, and documents showing thequalifications of the candidate.  If there are dependent/s then the formI-539 need to be filed along with proof of relationship to the H-1B, i.e.marriage certificate or birth certificate or both.  Only one I-539 isrequired to be filed as children are listed on the application.  The FormI-539 filing fee is $300. 

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