H-1B Visa is a perfect gateway for employers in the United States to bring in trained personnel from all around the world to work in their firms. It is an employment-based visa and thus, provides an opportunity to those foreign professionals who are theoretically and technically experts in their specific fields such as engineering, mathematics, medicine, science, and architecture. Below is the information relevant for employers.
Level 1 wages on the LCA.
Here are some things an employer in the United States must know before hiring foreign workers through H1-B visas:
1. Period of Employment:
According to Labor Condition Application, a foreign worker can work in the United States firm for three years but after these three years, the employee has to leave the United States and stay out for at least one year. This is a requirement if the employer wants to submit another H1-B petition. If a foreign worker has an immigrant visa petition in the process, he is allowed to stay longer than the allowed six years limit in the form of three-year or one-year increments.
2. Eligibility Criteria:
An employer can hire a foreign worker via the H1-B visa, who has a bachelor’s degree or educational qualification equivalent to it. This is the minimum requirement that an employer must consider while bringing in foreign workers.
3. Obligations of Employer to H1-B Worker:
The State Employment Agency Rule has set up a minimum wage for particular jobs and an employer wanting to hire a foreign worker through this visa must be capable of paying the prevailing wage.
The first thing an employer must know that a foreign worker must be paid a bit higher than the normal employee. If a situation where the employer terminates the foreign worker, the cost of transportation to his/her home country must be provided by the employer. The documents must be maintained by the employer for public examination. The work position of the H-1B visa worker is currently not subject to lockout or trike. Any change in the employment of the H1-B worker must be immediately notified to the USCIS.
4. Employer-Employee Relationship:
A valid employer-employee relationship must be established between the petitioner and the beneficiary. USCIS clarifies this through the fact, “it may hire, pay, fire, supervise or otherwise control the work of any such alien employee”. For this purpose, both the employer and the employee must go according to the requirements of the H1-B petition. These requirements include; the coming of the beneficiary to the United States for a temporary work in specialty occupation must be established, each location where the employee is expected to work must be mentioned, the Labor Condition Application must be filed specifically moreover, the employer must show that the beneficiary is eligible for the post.
The factors on which USCIS will conclude whether the employee has the right to control the employment of the beneficiary include; the way the petitioner supervises the beneficiary, the right of a petitioner to control the daily work and work product of the beneficiary and the right of the petitioner to hire, pay and fire the beneficiary.
All these will be considered by the USCIS to analyze whether the required employer-employee relationship exists or not. The petitioner must provide all the proofs of this relationship.
These four things are essential for an employer in the United States who wants to bring in an H1-B worker, to know and understand.