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NPZ Immigration Law Blog

Thursday, January 15, 2015

SUBMITTING AN H-1B PETITION ON APRIL 1st: WHAT PROSPECTIVE H-1B EMPLOYERS AND EMPLOYEES NEED TO KNOW? [Part II]

Although the U.S. economy slowed down a bit during the fourth quarter of 2014, recent reports suggest that it would pick up again because of continued job growth, consumer confidence and spending increases. What does this mean for the immigration practitioners, professionals, and prospective H-1B employers and employees? Assuming that the economy performs as projected, it is highly likely that we will once again, as we did in 2014, witness the H-1B lottery (technically referred to as "Random Selection Process") during April 2015. To better prepare for the H-1B cap, this article endeavors to summarize a few practice pointers which every prospective H-1B employer and employee should know.

The Filing Fee Depends Upon the Type And Size of H-1B Employer.

Besides legal fee, the employer will need to pay the USCIS filing fees. Note that there is no flat fee that every employer is required to pay. The amount of H-1B filing fee depends on the size and type of employer. All employers are required to pay the base filing fee of $325.00 for the H-1B petition. Additionally, pursuant to the American Competitiveness and Workforce Improvement Act (ACWIA), employers are required to pay an additional fee (commonly referred as ACWIA fee) of $750 or $1500 unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement.

A sponsoring employer is required to pay a fee of $750.00 if it employs 25 or fewer full-time equivalent employees. In all other cases, the employers need to pay $1500.00. Employers such as institutions of higher education; nonprofit organizations or entities related to, or affiliated with an institution of higher education; nonprofit research organization or governmental research organization, etc. are exempt from paying the ACWIA fee. Additionally, employers seeking initial approval of H-1B must pay a $500 Fraud Prevention and Detection fee as mandated by the H-1B Visa Reform Act of 2004.

Those H-1B employers required to submit the $500.00 Fraud Prevention and Detection fee are also required to submit $2,000.00 fee mandated by Public Law 111-230 if petitioners employ 50 or more employees in the United States; more than 50% of those employees are in H-1B or L nonimmigrant status; petition is filed before October 1, 2014. Further, either the employer or employee can pay an optional premium processing fee of $1,225.00 to expedite the adjudication of a petition. Thus, the H-1B filing fee depends upon the size and type of employer and can range from $825.00 to $5,550.00.

Be Aware of Salary and Benching Costs.

A prospective employer must obtain a certification from Department of Labor (DOL) that it has filed an LCA in the occupational specialty. The employer attests on the LCA that H-1B nonimmigrant worker will be paid wages which are at least the higher of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question OR the prevailing wage level for occupational classification in the area of intended employment. Thus, not to undercut wages paid to the comparable U.S. workers, Congress has included a safeguard in the H-1B program. Additionally, employers are required to pay the costs for the petition process.

Regulations require that employers must begin paying LCA-stated wages when the employee "makes him/herself available for work" but not later than 30 days after employee's entry into the United States or 60 days from the date that USCIS grants a Change of Status. Liability begins to accrue when the person "enters into employment" with the employer. Thus, even if the worker has not yet "entered into employment," when the H-1B worker is present in the U.S. on the date of the approval of the H-1B petition, the employer shall pay to the worker the required wage beginning 60 days after the date the H-1B worker becomes eligible to work for the sponsoring employer. The H-1B worker becomes "eligible to work" for the employer on the date set forth in the approved H-1B petition filed by the employer.

An employer must continue to pay an H-1B employee who is not working due to a nonproductive status at the direction of the employer (e.g., benching because of lack of work, lack of a permit or license). This regulation applies even if the H-1B employee is receiving training either provided by the employer or through some other external arrangement at the direction of the employer. Thus, the employer is liable for both nonproductive time as well as productive time once employee becomes eligible for work. Employers who do not pay non-terminated H-1B employees may face civil penalties. Employers are, therefore, advised to pay an H- I B employee his or her salary as listed on the LCA until that employee has been terminated and the USCIS has been notified of the request to withdraw the H- IB Petition. Furthermore, if the H-1B employee is terminated prior to the end of the period of admission, the employer is liable for "the reasonable costs of return transportation of the alien abroad.

Compliance Issues: Posting Notice of the LCA & Maintaining Public Access Files.

Notice of the LCA must be posted, or where there is a union it must be given to the union, before filing the LCA. The notice may be the LCA itself or a document of sufficient size and visibility that indicates: (1) that H-1Bs are sought; (2) the number of H-1Bs; (3) the occupational classification; (4) the wages offered; (5) the period of employment; (6) the location(s) at which the H-1Bs will be employed; and (7) that the LCA is available for public inspection. The notice should state where complaints may be filed. Notice must be posted "in a least two (2) conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed" and the notice shall be posted on or within 30 days before the date the labor condition application is filed and shall remain posted for a total of 10 days.

Notice may be posted in areas where wage and hour and OSHA notices are posted. An employer may also provide electronic notice to employees in the "occupational classification" for which H-1Bs are sought, through any means it normally uses to communicate with employees including a home page, electronic bulletin board or e-mail. If accomplished through e-mail it needs only to be sent once; other electronic forms (e.g., home page) should be "posted" for 10 days. Notices must be posted at each worksite including ones not originally contemplated at the time of filing but which are within the area of intended employment listed on the LCA.

Additionally, an employer must maintain a group of documents referred to as a Public Access File (PAF). The PAF must be accessible to interested and aggrieved parties. The PAF must be available at either the employer's principal place of business or at the worksite. An interested party is one that has "notified the DOL of his or her/its interest or concern in the administrator's determination."

The PAF must be available within one day after the LCA is filed with all supporting documentation including: a copy of the completed LCA; documentation which provides the wage rate to be paid; a full, clear explanation of the system used to set the "actual wage"; a copy of the documentation used to establish the prevailing wage; copy of the notice given to the union/employees; and a summary of the benefits offered to U.S. workers in the same occupational classification, and if there are differences, a statement as to how differentiation in benefits is made (without divulging proprietary information).

Demonstrate Sufficient Level of "Control" Over Prospective H-1B Employee(s).

In order for the H-1B petition to be approved by USCIS, a petitioning employer must establish that an employer-employee relationship exists and will continue to exist throughout the duration of the requested H-1B validity period. Hiring a person to work in the United States requires more than merely paying the wage or placing that person on the payroll of the H-1B petitioning organization. In considering whether or not there is a valid "employer-employee relationship" for the purposes of H-1B petition adjudication, USCIS must determine if the employer exercises a sufficient level of "control" over the prospective H-1B employee.

Thus, the prospective H-1B petitioner organization must be able to establish that it has the "right to control" as to when, where, and how the prospective H-1B nonimmigrant beneficiary will perform the professional and specialty occupation job. USCIS considers various factors in making such a determination (with no one particular factor being decisive).

For any additional H-1B information or for information about options for avoiding the H-1B cap, please feel free to contact the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. atinfo@visaserve.com or by calling our offices at 201-670-0006 (x107). Our highly qualified immigration lawyers and immigration attorneys stand ready to assist employers with the H-1B nonimmigrant visa process.


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