HR Mavericks

Eddy’s HR Mavericks Encyclopedia

H1-B Visa
We have all heard the term war on talent, meaning that your best candidates are hard to find. Positions are becoming more difficult to fill. Have you considered hiring outside of the US? If so, then an H-1B visa may be right for you. Continue reading to learn more about the H-1B visa program.

What is an H-1B Visa?

The United States Citizen and Immigration Services (USCIS) define H1-B as a temporary work visa that allows organizations and employers in the employ specialized foreign workers with a bachelor’s degree or higher in occupations that require the theoretical and practical application of highly specialized knowledge.

Who Can Use an H-1B Visa?

Any U.S. employer is eligible to sponsor an H-1B petitioner, however, you must have an IRS tax identification number, often referred to as an EIN. Applicants, on the other hand, have different eligibility requirements. These are:
  • Must have a job offer from a U.S. employer to fill a role that requires specialty knowledge, such as a biologist or chemist.
  • Applicants must hold a U.S. bachelor’s degree or higher, or a foreign equivalent.
  • The employer must show there is a lack of qualified applicants for the role.

What Employers Should Know About the H-1B Visa

Sponsoring an H-1B employee is a commitment and there are several requirements your organization needs to meet to avoid risk and penalties.
  • Relationship. Simply having the applicant submit a nonimmigrant’s application is not enough. An employer/employee relationship must be established, which requires the Form I-129 to be completed and submitted to the USCIS. This form is filed on behalf of the nonimmigrant worker (applicant) to seek authorization to come to the U.S. temporarily to perform a job. This form can also be used to train nonimmigrants.
  • Labor Condition Application (LCA). Employers must obtain an LCA from the U.S. Department of Labor (DOL). The LCA consists of attestations that include but are not limited to noting there are no strikes or lockouts, that working conditions will not impact current employees and any violations that can result in fines for the employer. In addition, the LCA must be posted at all worksites where the employee will work. By not doing so, you run the risk of committing immigration fraud.
  • Terminations. You must notify USCIS and the DOL immediately after terminating an H-1B visa employee. In addition, employers are required to pay wages for the period in which the petition was in effect and withdraw their LCA with the DOL.
  • Cost. Employers are required to cover the cost of returning the employee to their home country.

Necessary Steps to Hire an Employee with an H-1B Visa

Employers considering sponsoring H-1B visa applicants should review the necessary steps.

Step 1: Recruitment

UCCIS and the DOL require that organizations show in good faith that attempts were made to recruit and hire U.S. workers and were unsuccessful. For this reason, keep a record of your recruitment activities.

Step 2: Identify Positions

After reviewing your recruitment activities, identify positions that may be beneficial to the sponsor. These are your hard-to-fill positions such as an engineer or chemist. For a position to be eligible, an individual must hold the knowledge and expertise of a bachelor's degree or foreign equivalent. In addition, you must ensure that no workers will be displaced should you hire H-1B visa applicants.

Step 3: Prevailing Wages

In this step, you will want to review salaries to ensure you have met the prevailing wage criteria set by the DOL. The DOL requires that wages offered to foreign workers be at the prevailing wage rate, or the average wage paid to similarly employed workers in the specific occupation. Employers must pay the prevailing wage or the actual wage paid to workers with similar skills and qualifications, whichever is higher.

Step 4: Eligibility

Ensure that your applicants are eligible. As previously stated, you will want to ensure that the applicant has a U.S. bachelor’s degree or foreign equivalent, holds a valid license and/or certification and/or has the education or training to fulfill the role.

Step 5: Fees

Pay applicable fees. There are several fees associated with sponsoring an H-1B visa applicant and employers are required to pay them. Be sure to review and budget for such items. For additional information regarding fees, visit UCIS.

Step 6: Labor Condition Application

Before submitting an application, you must first be awarded a Labor Condition Application (LCA) by the DOL. The LCA is an agreement that the employer will pay the applicant wage similar to others in the role and states that the working conditions are positive.

Step 7: Form I-129

After completing the LCA and receiving approval, next complete form I-129 and submit it to UCIS. You will need to include the LCA as well. Once the request has been approved, the applicant will submit an application via the online nonimmigrant visa application portal using form DS-160. An interview will be required with a U.S. official.
Wendy N. Kelly, MSHRM, PHR, SHRM-CP

Wendy N. Kelly, MSHRM, PHR, SHRM-CP

Wendy is an HR professional with over 10 years of HR experience in education and health care, both in the private and non-profit sector. She is the owner of KHRServices, a full service HR management agency. She is also SHRM and HRCI certified, serves as a HRCI Ambassador, and voted 2021 Most Inclusive HR Influencer.
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