H-1B Visas

1. H-1B Visas Dylan SugiyamaInternational Employment SpecialistNorth Carolina Office of State Personnel

2. 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

3. Agenda (Cont.) • Labor Conditions Application • Employee qualifications and equivalencies • Numerical limitations • Willful violators and H-1B dependent employers • Petition approvals, denials, extensions, amendments, etc.

4. 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

5. 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

6. Specialty Occupation • Requires a bachelor’s degree or higher as a minimum for entry into position

7. Specialty Occupation • Degree requirement is common to the industry in similar positions among similar organizations

8. 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

9. 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

10. 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

11. Specialty Occupation-Evidence • Occupational Outlook Handbook can also be used to show that a specific type of degree is required for the position

12. 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?

13. 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

14. 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

15. H-1B Initial Evaluation Check to see if yearly cap has been reached at: http://uscis.gov/graphics/services/tempbenefits/cap.htm

16. 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?

17. 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

18. 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

19. 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)?

20. The I-129 Form: Who is the alien? • What is the employee’s name/address? • What is the employee’s immigration history?

21. 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)?

22. 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?

23. The I-129 Form: Employer’s Signature • You are verifying the accuracy of all included information

24. 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

25. H-1B Fee Determination and Numerical Limitation Form • Used to calculate fee amounts.

26. 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.

27. 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)

28. 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

29. 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

30. 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

31. 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.

32. Components of a Complete H-1B Petition (Cont.) Previous immigration documents • Previous visa stamps • I-94 cards • Copies of passports

33. 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)

34. 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

35. $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

36. Exemptions from $1500 fee • An institution of higher education • A nonprofit organization associated with an institution of higher education

37. 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

38. 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

39. 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

40. Determining Salary • Must determine exact salary before agreeing to sponsor an H-1B • Salary must be equal to or greater than the prevailing wage

41. 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

42. 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

43. 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

44. Prevailing Wage Demo http://www.flcdatacenter.com/OesWizardStart.aspx

45. 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

46. Prevailing wage level • Review the tasks, knowledge, etc., to gain an understanding of what is generally required for successful performance in that occupation

47. 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

48. 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

49. 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

50. 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