H-1B Employer-Employee Relationships
In an H-1B application, the U.S. employer is called “Petitioner”, and the foreign employee is called “Beneficiary”
The petitioner and beneficiary must have an employer-employee relationship to be eligible for an H-1B visa.
This means that the U.S. employer petitioner may hire, pay, terminate employment, supervise, or otherwise control the daily work of the foreign national.
According to the USCIS manual, the officer should consider whether the petitioner has established that it meets at least one of the ‘hire, pay, fire, supervise, or otherwise control the work of” factors with respect to the beneficiary.
Under the current regulations, a U.S. agent may be the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or a person or entity authorized by the employer to act for, or in place of, the employer as its agent.
H-1B Wage Requirements
Unlike most other nonimmigrant visa categories, H-1B visas have wage requirements.
To be eligible for an H-1B, the beneficiary must meet the “prevailing wage” salary paid to similarly employed workers in that geographic area.
The prevailing wage can be found in the DOL’s Foreign Labor Certification Data Center Online Wage Library.
You will first need to select the geographic location, then the occupations are broken down into the DOL’s Standard Occupational Classification (SOC) System.
The SOC system contains 867 occupations but it might be difficult to find occupations that meet the current technology and modern industry.
In cases where you cannot find a fit, the duties of the position should be the primary factor in selecting an appropriate SOC code.
Employers also have an option of filing a Prevailing Wage Request with the DOL. In this scenario, the DOL will make a determination of the appropriate SOC code and prevailing wage.
Such DOL determinations can take several months to complete which doesn’t seem practical for H-1B filings.
After determining the correct occupation category, petitioners must identify the correct wage level for the given position.
Every SOC code has a wage level of 1-4:
- Level I – entry-level positions;
- Level II – positions that require more independent decision-making and complex tasks;
- Level III – more experienced staff members who may supervise others;
- Level IV – supervisory or managerial positions.
Petitioners should be strategic about choosing the correct SOC code and wage level early in the H-1B process to prevent any possible issues with USCIS.
One of the most important H-1B requirements is that employers should pay most of the H-1B related expenses such as attorney fees and government fees.
H-1B employers can deduct only the fees required by law from the beneficiary’s salary:
- Income tax,
- Deductions permitted by a collective bargaining agreement, or
- Deductions that are reasonable and customary in the area of employment, for example:
- Health insurance or retirement fund deductions
Labor Condition Applications
Every H-1B petition starts with filing an LCA (Labor Condition Application) with the DOL.
To submit an LCA, the petitioner provides its Federal Employer Identification Number (FEIN) to the Office of Foreign Labor Certification for verification.
The LCA (Form ETA-9035) gathers the following information:
- Position title
- Start date
- Worksite location
- Wage, and
- Prevailing wage for the SOC code and wage level that was chosen.
Form ETA-9035 is submitted online, and the DOL typically certifies the LCA within seven business days.
A certified and signed copy of the LCA will be submitted to USCIS with the rest of the H-1B petition.
Once certified, an LCA is valid for up to three years.
An H-1B cannot be approved without a valid LCA, so it’s important to correctly prepare the LCA form.
Additionally, the petitioner is required to post a Notice of Filing Labor Condition Application.
The posting will inform all employees of the company that an LCA has been or will be filed for an H-1B worker.
This posting notice includes the following information:
- Job title;
- Start date;
- End date; and
- Work location.
This notice must meet the following requirements:
- Be posted for 10 business days at work locations.
- The dates that the notice was posted and removed must be signed and dated by a company employee.
The LCA has two goals:
1) Ensuring that U.S. wages are not negatively impacted by hiring foreign employees
2) Foreign workers are not being exploited.
The employer makes the following attestations in this notice:
- The required wage is being paid which is the greater of the prevailing wage or the actual wage paid to other employees in the same position;
- Employment of H-1B workers will not negatively affect the U.S. workers;
- There was no strike, lockout or other work stoppage because of a labor dispute when the LCA was filed;
- The H-1B worker will be given a copy of the LCA;
- Employer has either notified the bargaining representative if the job is unionized, or, if not, the employer has posted in a conspicuous place notice that an LCA was filed.
The Public Access File
An H-1B employer must establish a Public Access File (PAF) within one business day of filing the LCA.
PAF may be viewed by any person.
The Public Access File (PAF) must contain the following documents:
- A copy of the filed LCA and cover pages;
- A copy of the LCA Instructions (10 pages);
- Documentation of the wage rate to be paid and a copy of the documentation used to establish the prevailing wage;
- A memo from the employer documenting that the H-1B beneficiary will be paid an amount equal to or higher than the actual wage paid to other employees with similar experience and qualifications and explaining the system used to determine the actual wage;
- Proof that the H-1B employee has received a copy of the LCA;
- Proof that the LCA has been provided to the Collective Bargaining Representative or documentation that the LCA was posted at the work site or provided to employees’ electronically.
- A summary of the benefits offered to the employer’s U.S. workers in the same occupational classification as the H-1B worker. Any differences in benefits need to be explained;
- If the employer undergoes a change in corporate structure (such as a merger), a sworn statement from a responsible officer of the new employing entity that it accepts all the obligations, liabilities, and undertakings under the LCAs filed by the predecessor employer, together with a list of each affected LCA, their date of certification and a description of the actual wage system, and the FEIN of the new employer;
- For “single employers,” a list of any entity included as part of the single employer when making H-1B determinations;
- For employers who are considered H-1B dependent or “willful violators”, a list of exempt H-1B employees and a summary of recruitment methods used and the time frames of recruitment of U.S. workers.
Filing H-1B Application with USCIS
Once the LCA is approved and the petitioner has been selected in the electronic registration system (in a cap case), an application can be filed with USCIS.
The application can be filed up to 180 days before the intended start date for employment and must be filed with the USCIS Service Center with jurisdiction over the state where the beneficiary will be employed.
H-1B Application Checklist
Each item below should be submitted in two copies. The following forms and documents are submitted to USCIS:
Type of document
Examples of acceptable documents
Who provides it
Information about petitioner, position and employee
Specialty occupation documents
Employer’s ability to pay prevailing wage
Proof of maintaining lawful status
Beneficiary (only if applying for change or extension of status)
Beneficiary (only if employment requires possession of a professional license).