The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation for a period of three years. The visa can be extended for an additional three years. The employer can also employ the employee part-time.
Public Access File
Regulations require that the employer maintain a public access file which is to be made available for public inspection. As part of the LCA and H-1B visa petition process, the employer must agree to make certain information relating to the LCA available for public examination at the employer’s principal place of business in the U.S. or at the place of employment within one working day after the date on which the LCA is filed with the Department of Labor. Such information is referred to as the Public Access File and should consist of the following items:
- A copy of the LCA and related cover pages.
- Documentation providing the wage rate to be paid to the employee.
- A detailed explanation of the employer’s system used to set the actual wage to be paid to the employee.
- Documentation used by the employer to determine the prevailing wage.
- Documentation evidencing that the employer has complied with the union employee notification requirements, if there is a union.
- A summary of the employer’s benefits offered to U.S. workers in the same occupational classification, an explanation regarding the difference in benefits offered to such employees if all employees in the same occupational classification are not offered the same benefits and, if applicable, an explanation of any home-country benefits the employee will receive.
- Additional information is required to be placed in the Public Access File if the employer is H-1B dependent or a willful violator.
The employer should maintain a Public Access File for each employee and should keep this file separate from the employee’s personnel file. The Public Access File must be maintained by the employer for at least one year past the date of the employee’s related employment.
Additional requirements for H-1B dependent employers. Employers are considered to be dependent if they have less than 25 workers and more than 7 H-1B workers; between 26 to 50 workers and more than 12 H-1B workers; or more than 50 workers with 15% or more of them being H-1B foreign nationals. In this case, H-1B dependent employer must fulfill 2 additional requirements. Displacement of US workers: An H-1B dependent employer must attest that by hiring a H-1B worker, it is not displacing any US worker for a similar position within 90 days before or after filing a H-1B petition.
Recruitment efforts: The H-1B dependent employer must also attest to making good faith attempts to recruit US workers and offering prevailing wages for this position.
Terminating an H-1B Visa Holder
Upon terminating an H-1B visa holder, the employer is obligated to pay for the reasonable costs associated with the employee’s return flight home. In most instances, this is not an issue because typically when an H-1B visa holder leaves one employment, he or she is accepting another employment opportunity and, as a result, does not return to his or her home country.
When Should You File?
The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.
Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date. In recent years there has been more H-1B applications than visas available so USCIS has resorted to a lottery system in selecting H-1B visa applications for adjudication.
To learn more about how to sponsor an employee on an H-1B specialty occupation visa, contact the team at Pollak PLLC today.
We are passionate about helping people realize the American Dream, reuniting families, and bringing the best and brightest minds to the U.S. so they can pursue their goals and make a positive, meaningful contribution to the community.
Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration