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.
Combating H-1B Abuse:
H-1B abuse is on notice. The H-1B visa program helps U.S. companies maintain competitive advantage by recruiting highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, the Trump Administration claims too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Employers who abuse the H-1B visa program negatively affect U.S. workers, decreasing wages and opportunities as they import more foreign workers.
Protecting American workers by combating fraud in our employment-based immigration programs is a priority for Trump’s USCIS. USCIS continuously works to deter and detect fraud in all immigration programs and we are furthering our efforts by enhancing and increasing site visits, interviews, and investigations of petitioners who use the H-1B visa program. These efforts will help assist in the prosecution of program violators and ensure that American workers are not overlooked or replaced in the process.
Reporting Suspected H-1B Abuse
Trump Administration has established an email address dedicated to receiving information about suspected H-1B fraud or abuse. Anyone (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) can email [email protected] to submit tips, alleged violations, and other relevant information about potential H‑1B fraud or abuse. When submitting information to [email protected], please provide the following information in the email:
- The name of the H-1B petitioning employer/company
- The address of the employer/company or location of the H-1B worker(s), including the city and state
- A description of the alleged violation, abuse, or suspected fraud
- Your email address
- Your name and phone number (optional)
- Any other information that may be useful to investigate the alleged fraud or abuse
The Trump Administration encourages individuals to report allegations of employer fraud and abuse by submitting a Form WH-4 to the Department of Labor’s (DOL) Wage and Hour Division. The public may also contact U.S. Immigration and Customs Enforcement (ICE) by completing the HSI Tip Form.
H-1B Fraud and Abuse Indicators
Examples of H-1B abuse indicators may include:
- The H-1B worker is not or will not be paid the wage certified on the Labor Condition Application (LCA).
- There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers.
- The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description.
- The H-1B worker has less experience than U.S. workers in similar positions in the same company.
- The H-1B worker is not working in the intended location as certified on the LCA.
Protections for H-1B Workers Who Report Suspected Abuse
If a worker on the visa reports H-1B Abuse, immigration law may provide certain protections to these workers. If an H-1B worker:
- applies to extend their H-1B status or change their nonimmigrant status,
- indicates that they faced retaliatory action from their employer because they reported an LCA violation, and
- lost or failed to maintain their H-1B status,
USCIS believes this situation is an instance of ‘‘extraordinary circumstances’’ as defined by sections 214.1(c)(4) and 248.1(b) of Title 8, Code of Federal Regulations. Normally, H‑1B workers are not eligible to extend or change their status if they have lost or failed to maintain their H-1B status. However, if they can demonstrate ‘‘extraordinary circumstances,’’ we may use our discretion to excuse this requirement on a case-by-case basis.
Expansion of Site Visits
Since 2009, USCIS has conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification. We verify H-1B workers’ wages, job duties, and work locations during site visits. This action is not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system.
We seek to determine if workers are not being paid while in the United States as they wait for projects or work, a practice known as “benching” which violates U.S. immigration laws. We also conduct site visits in cases where there are suspicions of fraud or abuse and refer many of the cases to our counterparts at U.S. Immigration and Customs Enforcement (ICE) for further investigation.
Starting this month, we will take a more targeted approach focusing on:
- H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute);
- Cases where we cannot validate the employer’s basic business information through commercially available data; and
- Employers petitioning for H-1B workers who work off-site at another company or organization’s location.
Targeted site visits will also help us determine whether H-1B-dependent employers who normally must meet H-1B recruitment attestation requirements are actually paying their workers the statutorily required salary to qualify for an exemption from these requirements. These site visits will assist in determining if these employers are evading their obligation to make a good faith effort to recruit U.S. workers and to not displace U.S. workers.
Targeted site visits will allow us to focus resources where H-1B abuse may be more likely to occur. We will also continue to make unannounced and random visits to all H-1B employers across the country, both before and after any petition is adjudicated.
Trump administration declared that transparency about how the H-1B program is being used is vital to ensuring accountability for employers and improving policies and practices that protect American workers. After the H-1B cap filing season for fiscal year (FY) 2018 concludes, USCIS plans to publish a report on the H-1B visa petitions submitted for FY 2018 along with data about the petitions. USCIS also plans to create a web-based, searchable platform for the public to better understand how H-1B visas are being used.