Basic H-1B Fact Sheet

By: Vishal Chander, The Chander Law Firm, P.C.

The process of hiring foreign workers can be long and complicated. This fact sheet provides a general outline to employers who are thinking about hiring foreign workers under the H-1B Specialty Occupation Program.

About the H-1B program

The H-1B program allows United States employers to hire foreign national workers to work in specialty occupations. A specialty occupation requires theoretical and practical application of a body of highly specialized knowledge. It also requires at least a bachelor’s degree or higher in the specific specialty as a minimum for entry into the occupation.

An H-1B beneficiary may work for a United States employer temporarily for a period of up to six years.  H-1B status is issued for an initial period of three years.  H-1B status may be extended for an additional three years.  H-1B status may be extended beyond the six year maximum under limited circumstances when the H-1B holder has a pending employment based green card application.

H-1B Quota: Cap Subject and Cap Exempt Positions

An annual quota between 58,200 and 65,000 H-1B visas is available each fiscal year. An additional quota 20,000 H-1B visas may also be available for individuals who graduate with master’s degrees or higher from United States institutions of higher learning. Employers should file for H-1B applications as early as possible in order to ensure visas are available. The H-1B cap applies only to new workers, not those already on H-1B status.

Certain occupations are not subject to the annual numerical limitations on H-1B numbers. These occupations include:

• J-1 physicians who have obtained a waiver under the Conrad 30 program
• Employees at institutions of higher education or related or affiliated nonprofit entities, or non-profit research organizations, or governmental research organizations

Filing Timelines for Cap Subject Petitions

Cap subject H-1B visas are subject to strict filing timelines.  The annual quota of H-1B visa numbers are released on the first day of each new government fiscal year, which is October 1st.  Employers seeking to hire foreign nationals under the H-1B program may begin filing applications for for the upcoming fiscal year on April 1st of preceding fiscal year.  For instance, employers seeking to hire H-1B employers starting work on October 1, 2011 may file applications for the employees starting on April 1, 2011.

H-1B Portability

H-1B status also allows employees to transfer to new employment under portability provisions.  The portability provisions allow H-1B status holders to begin working for a new H-1B sponsoring employer upon receipt of the new H-1B application by USCIS. 

H-1B status holders who apply for extensions of status or transfer under the portability provisions are not subject to the H-1B quota, so long as the employee has been counted against the H-1B cap during the preceding six years and the employee has not been outside the country for more than one year.

The process for obtaining H-1B status

Filing of the Labor Condition Application (LCA)

An employer seeking to hire a foreign national under the H-1B category must first file a Labor Condition Application (LCA) with the U.S. Department of Labor. The LCA must provide:

• the employee will be paid the actual or prevailing wage
• the working conditions for other workers will not be adversely affected
• there is no strike or lockout involving the occupation and
• the employer gave notice to the bargaining representative or posted notice at the workplace

The LCA will specify the number of employees sought, the wage rate and working conditions, and the occupation.

Filing the H-1B Application with USCIS

The H-1B petition may only be filed upon approval of the LCA.  The petition must include evidence of a bona fide job offer in a specialty occupation and that the H-1B beneficiary meets the qualifications for the position. 

Wage Requirements

The employer must offer to pay the foreign worker the required wage.  The required wage is either the actual wage paid by the employer to other employees with similar experience and qualifications for the specific employment or the prevailing wage for the occupational classification in the geographical area of employment - whichever is greater.  

Penalties for failing to abide by Department of Labor rules

Failure to comply with Department of Labor laws may result in fines ranging from $1,000 to $35,000 and denial or all future applications. These penalties result from a “substantial failure” to comply. Penalties may also arise from a willful failure to comply. Failure to pay the appropriate wage may result in an order for backpay. Where reinstatement of an employee is not possible, the employer may be ordered to pay frontpay. Similar penalties are possible for intimidation of employees or whistleblowers.

H-1B Dependent Employers

An H-1B dependent employer is an employer with:

• 25 or fewer full time employees who employs 7 H-1Bs
• 26 to 50 full time employees and more than 12 H-1Bs
• 51 full time employees of which at least 15% are H-1Bs

H-1B dependent employers have special attestation requirements and may be subject to fines and penalties that other willful violators are subject to.  If your company is an H-1B dependent employer, the H-1B beneficiary must be offered a salary of $60,000 or must have a masters degree or higher.

---

<- Back to: News & Articles

 Subscribe to this feed