Recruiting Skilled Foreign Employees: H-1b Application Procedures And Labor Compliance
The H-1B visa is intended to help US companies bring skilled foreign workers into the country to work in highly technical, specialized, or trained positions. Each year, only a small number of potential candidates are selected, so it is vital to ensure that any application you submit meets all criteria perfectly. This article explains some of the more complex compliance steps, as well as the procedure required for an application. It discusses
The H-1B visa and its advantages and limitations.
The Labor Condition Application (LCA) needed to submit an H-1B visa application successfully.
The step-by-step requirements and procedures for an H-1B visa employee sponsoring process.
What Is The H-1B Visa? What Advantage Does It Offer Companies?
Skilled labor, truly skilled labor, is always in short supply. This is especially true for students or employees with specific in-demand skill sets and degrees. The H-1B visa is one solution to that problem. The program allows employers in the US to recruit international candidates or foreign nationals trained in the US.
The H-1B visa is an employment-based, non-immigrant visa for specific skilled positions and employees. It allows recipients to come to live and work in the US for 3-6 years. The program requires that companies sponsor specific individuals for the position, a procedure that has its fair share of complications and difficulties.
Not the least of which is the need for a Labor Condition Application to the Department of Labor and compliance with other labor-related regulatory practices.
What Is The Labor Condition Application (LCA) Process And What Is Its Significance In The H-1B Application Process?
In order to be eligible for the H-1B program, an employer must comply with certain Department of Labor legal requirements. These legal requirements include the submission to the Department of Labor of certain attestations under penalty of perjury. So they are not to be taken lightly.
In order to comply with the H-1B requirements, you must attest that:
You will pay the H-1B worker whichever is higher of either
The prevailing wage for that occupation in the geographic area of intended employment,
The actual wage you pay other workers with similar experience in the intended employment area.
The working conditions of other workers will not be adversely affected by the employment of the H-1B worker. Including vacation periods and working hours.
There is currently no strike, lockout, or other work stoppage.
You have provided notice to other workers at the workplace that they will be hiring an H-1B worker.
This is in addition to all the basic and practical information you will need to submit with the H-1B application and should not be taken lightly as an error or omission can see your chance at hiring that skilled worker you need disappear.
Additionally, you will need to make much of this information openly available to the public, which is a process a skilled non-immigration employment attorney can help with.
What Is The Public Access File And What Does It Need To Include?
To fully comply with the Labor Conditions Application (LCA) you submitted to obtain the H-1B visa sponsorship; you must also keep a public access file with information about H-1B workers and conditions. This file must be made available to any member of the public who asks for it within one business day or less.
The file will have to contain documentation about each H-1B worker you currently employ, including
The Labor Condition Application, certified by the Department of Labor, and documents justifying the information contained in that application.
Documents explaining or demonstrating how you determined what the prevailing or actual wage would be for the employee in question.
Proof that other employees were provided with notice of your H-1B petition on behalf of the particular employee.
Evidence that the H-1B employee received a copy of the Labor Condition Application.
The standard benefits provided to your employees.
Evidence that the H-1B employee is receiving the same benefits.
If any member of the public comes to you asking for the public access file for all your H-1B employees, you must be able to provide it within a single business day. So you cannot simply write it up when needed.
In addition to the elaborate steps required to sponsor an employee, this public access requirement is just one of many barriers that keep small and medium US enterprises from accessing these important skilled workers. They are compounding reasons why anyone who wants skilled labor should work with an attorney with experience in the H-1B process.
From Start To Finish, How Can A Business Employment Immigration Attorney Help You Sponsor An Employee For An H-1B Visa?
In order to help small and medium businesses gain access to these valuable, even essential, nonimmigrant workers, Our firm offers extensive assistance and guidance throughout the application process. Under our process, all you need to do is provide our firm with the necessary information and some of the documentation, and we take care of the rest.
What Information Do You Need To Provide To Get Started On A Successful H-1B Application?
All you have to provide our immigration law firm with is the basic information explaining the job description, requirements, location, and proposed employment terms. This is merely internal information to get the process started.
Then, you can follow this up with a more formal offer letter (which we will offer guidance with), including the terms of employment, location(s), the salary offered, and the benefits package. Once we have that and the name and email address of the prospective employee, we are good to go.
What Information Does The Prospective H-1B Employee Need To Provide?
Once we get the basic information from your end, we invite you and the employee to our portal (specially designed for the process), where they can directly upload documentation relating to their qualifications, such as university degrees, transcripts, and resumes.
We will ask them for any evidence of any integration process in which they are involved, whether they already have H-1B status or not, and whether they have a green card pending.
One of the biggest advantages of our process is that we do not need to wait for the employee’s documents in order to get started on everything else you need.
How Will Our Immigration Law Firm Facilitate My H-1B Eligibility And Labor Compliance?
As soon as we receive the initial documents from you, while we are waiting for the employee to submit them, we will get started on your public access file and Labor Condition Application.
We prepare, in accordance with all regulatory standards:
A prevailing wage worksheet, which describes how we obtain the prevailing wage.
An actual wage worksheet describing how you determine the actual wage of different employees.
Documentation from the Department of Labor describing different wage levels in the locations of employment.
The notice you will need to put up for your other employees.
The Department of Labor's description of the employee's occupational classification.
Once all the documents for the public access file are ready, we will send them to you, and you can put up the notice that we prepared in two conspicuous locations of the workplace. Once you have done so, we will file the Labor Condition Application for you, officially launching the process.
How Will Working With Us Help Streamline Your H-1B Sponsorship Process?
Once we have taken care of the LCA for you and ensured it is error-free and in full compliance with all the conditions and requirements for both the Department of Labor and Immigration Services, we move on to the H-1B petition itself. We prepare that based on the information you already provided, including the job description and job requirements.
That way, when the Labor Condition Application is certified by the Department of Labor (about 7 to 10 days after submission), we can immediately send you the Labor Condition Application together with the H-1B petition itself (form I-129). We will also include the employer support letter, which describes the position, why the position is an H-1B position, why the position and the employee are eligible for the H-1B, and the employee's qualifications. This saves you the time and effort of preparing all of the above, not to mention helps avoid any errors that would derail or delay your filing.
Once you have read through and signed these documents, you send them back to us, and we then submit the H-1B petition. If the employee already has H-1B status, they can start working for you as soon as the US Citizenship and Immigration Services (USCIS) receives the petition.
Generally speaking, though, it is better for the employees to start working once the petition is approved instead. Most employees will prefer this anyway as if they are already employed, they will not want to leave their current employer until they are sure that their H-1B petition will be approved.
How Does The Transfer Of An Employee Already Working Under H-1B Status Work?
If an employee has already made it through the lottery and gained H-1B status, they may later want or need to change employers. This requires a slightly different process and procedure than for those who still need to go through the lottery or who have student status and need to change to H-1B status.
Generally speaking, though, it is even simpler and faster than the procedure outlined above.
What Is The Timeline On H-1B Sponsorship And Application Procedures?
Obviously, time is precious, especially when you are desperate to get that job filled. This is why it is important to prepare on time and why our firm prides itself on efficient and rapid turnaround.
The H-1B process starts in February when we compile the basic information we need from you using a basic questionnaire that takes five minutes to fill out. Then, we submit an H-1B registration for the electronic random selection process right at the start of April.
The USCIS then conducts the lottery, the H-1B random selection process, and notifies employers who have been selected by the end of March. If your submission was selected, we will help ensure you submit the H-1B petition on behalf of the selected employee by June 30th. If that petition is approved, the employee can start working for the employer in H-1B status on October 1st.
Without a skilled attorney to handle these intricate steps, you run the risk of missing key deadlines or failing to include or incorrectly filing crucial information. These errors can take you out of the running entirely, forcing you to wait an entire year longer, at least, to try again.
(512) 548-4499 today.