The H-1B visa program allows U.S. employers to hire foreign workers in specialized occupations. To ensure compliance with this program, employers must adhere to a specific set of rules and regulations. In this article, we will delve into the essential steps that employers need to take to maintain H-1B visa program compliance.
Understanding the H-1B Visa Program
The H-1B visa is a non-immigrant visa category that allows U.S. employers to temporarily employ foreign workers in specialty occupations. These specialty occupations typically require a high level of specialized knowledge and may include fields such as information technology, engineering, healthcare, and more.
Eligibility Criteria
To participate in the H-1B program, employers must meet specific eligibility criteria. These criteria include:
- Employer Qualifications: Employers must be legitimate U.S. entities with a physical presence and a valid Employer Identification Number (EIN).
- Job Position: The job offered must fall under the category of a specialty occupation, necessitating at least a bachelor’s degree or equivalent.
- Employee Qualifications: The foreign worker must possess the necessary qualifications and meet the educational requirements for the specific job.
The H-1B Application Process
Hiring foreign workers under the H-1B program involves a detailed application process. Employers must adhere to the following steps:
Labor Condition Application (LCA)
Before filing an H-1B petition, employers must obtain a certified Labor Condition Application (LCA) from the Department of Labor (DOL). The LCA certifies that the employment of the H-1B worker will not adversely affect the wages and working conditions of U.S. workers in similar positions.
Filing the Petition
Employers must submit Form I-129, Petition for a Nonimmigrant Worker, to the U.S. Citizenship and Immigration Services (USCIS). This form outlines the job details, including the position’s qualifications, salary, and location.
Approval and Visa Issuance
Once USCIS approves the petition, the foreign worker may apply for an H-1B visa at a U.S. consulate or embassy. If the worker is already in the United States on another visa status, they may apply for a change of status to H-1B.
Maintaining Compliance
To maintain H-1B visa program compliance, employers need to follow a series of important guidelines and requirements.
Wage Requirements
The H-1B program necessitates that employers pay H-1B workers the higher of the actual wage paid to other employees in the same position or the prevailing wage for the occupation in the geographic area. To determine prevailing wages, employers can refer to the Occupational Employment Statistics (OES) database, the Online Wage Library, or consult with a reputable third-party wage analysis provider.
Non-discrimination
Employers must avoid any discrimination against H-1B workers in terms of hiring, firing, or other employment-related decisions. Treating H-1B workers fairly and equally is crucial for maintaining program compliance.
Working Conditions
H-1B employees must receive the same working conditions and benefits as their U.S. counterparts. This includes working hours, breaks, and access to facilities.
Public Access File
Employers are required to maintain a Public Access File for each H-1B worker. This file should be readily available for inspection by authorized officials and include documents such as the LCA, the worker’s wage information, and evidence of notice to other employees regarding the H-1B employment.
Reporting Changes
Employers are obligated to report any changes in employment status, such as changes in job location, position, or salary, to USCIS. This ensures that the H-1B worker’s status remains accurate and up-to-date.
Legal Compliance and Due Diligence
To maintain H-1B visa program compliance, employers should seek professional legal guidance and conduct thorough due diligence. The following measures can help ensure legal compliance:
Legal Counsel
Employers should consult with experienced immigration attorneys or legal experts well-versed in the H-1B program’s intricacies. They can provide valuable guidance on preparing petitions, maintaining compliance, and addressing any issues that may arise.
Document Verification
Employers must verify the authenticity of documents submitted by H-1B workers. This includes educational credentials, work experience, and any certifications required for the position.
Record-Keeping
Maintaining meticulous records is crucial. Employers should keep records of H-1B petitions, public access files, payroll records, and documentation related to the Labor Condition Application (LCA) for each H-1B worker.
Avoiding Fraud and Abuse
To maintain H-1B visa program compliance and protect against fraud and abuse, employers must be vigilant. The program has been subject to scrutiny, and non-compliance can lead to severe consequences.
Third-party Site Visits
U.S. Citizenship and Immigration Services (USCIS) may conduct site visits to verify that H-1B employees are working at the designated location and that their working conditions meet program requirements. Employers should be prepared for such visits and ensure that their records are accurate and up-to-date.
Anti-fraud Measures
USCIS has implemented anti-fraud measures to prevent abuse of the H-1B program. Employers must cooperate fully with any requests for additional information or documentation during the application process or after approval.
Handling Changes in Employment
Employers should be aware of the procedures and requirements when making changes to an H-1B employee’s employment status. This includes scenarios such as promotions, terminations, and job location changes.
Promotions and Position Changes
If an H-1B worker receives a promotion or changes positions within the company, employers must ensure that the new position continues to meet the requirements for a specialty occupation. Employers should also file an amended H-1B petition to reflect these changes.
Terminations
If an H-1B worker is terminated before the end of their authorized period of stay, employers are required to offer the worker transportation costs to return to their home country. Employers must also notify USCIS of the termination to ensure the worker’s legal status is properly terminated.
Job Location Changes
When an H-1B worker’s job location changes, employers must file an amended H-1B petition to reflect the new work location. Failure to do so can lead to compliance issues.
Compliance Audits
USCIS and the Department of Labor may conduct random or targeted audits to assess an employer’s compliance with the H-1B program. Employers should be prepared for these audits and maintain accurate records to demonstrate compliance.
Internal Audits
Employers can conduct internal audits to proactively identify and address compliance issues. These audits should encompass all aspects of H-1B employment, including wage rates, working conditions, and public access file documentation.
External Audits
In the event of an external audit by government agencies, employers should fully cooperate and provide all requested documentation in a timely manner. Failure to do so can result in legal consequences.
Conclusion
The H-1B visa program offers a valuable opportunity for U.S. employers to hire foreign workers with specialized skills. However, compliance with the program’s rules and regulations is essential to avoid legal issues and maintain a positive reputation. By following the steps outlined in this article, employers can navigate the H-1B program with confidence, ensuring that they remain in good standing and can continue to benefit from the program’s advantages. Staying informed about the latest developments in H-1B visa regulations and seeking professional legal advice when needed are crucial elements in achieving and maintaining compliance.
2024 Update:
U.S. Citizenship and Immigration Services (USCIS) has unveiled a Notice of Proposed Rulemaking, which outlines various changes to the H-1B visa program. The proposed revisions are intended to enhance the program’s efficiency, address issues of fraud in H-1B cap registration, and provide greater clarity to employers and foreign workers.
One of the key modifications in the proposal involves altering the H-1B registration selection process. Currently, the more registrations an employer submits on behalf of an individual, the higher the individual’s chances of being selected in the lottery. Under the new proposal, each unique person for whom a registration is submitted would be entered into the selection process once, irrespective of the number of registrations submitted for them. This change aims to reduce the potential for misuse and fraudulent practices.
In addition to this change, the proposal introduces several other adjustments:
- Redefining educational criteria for H-1B eligibility, emphasizing the necessity of a direct relationship between the degree field and job duties. General degrees would no longer be sufficient.
- Clarifying when employers must file an amended or new petition due to a change in an H-1B worker’s place of employment.
- Emphasizing the importance of the actual work to be performed when determining H-1B status for workers redirected to third parties.
- Extending protection for F-1 students changing status to H-1B, offering up to an additional six months of status and employment authorization.
- Codifying USCIS’s practice of requesting evidence of a genuine job offer for each H-1B beneficiary, eliminating the itinerary requirement.
- Clarifying USCIS’s deference policy, emphasizing that adjudicators should generally defer to prior determinations if there has been no material change in the underlying facts.
The proposed rule also addresses site visits. USCIS seeks to clarify that refusal to cooperate with inspection site visits may lead to petition denial or revocation. These site visits are essential for upholding the integrity of the H-1B program and detecting and preventing fraud and noncompliance. They may include onsite visits to the petitioner’s facilities, interviews with officials, record reviews, and interviews with other individuals to verify facts related to the petition.
Overall, these proposed changes aim to streamline the H-1B visa program, deter fraudulent practices, and provide more clarity for employers and foreign workers. The public will have a 60-day period to submit comments on the proposed regulations, which may result in several final rules in the future, with anti-fraud provisions expected to be issued before the H-1B cap registration process for 2024.
Note: Information found on this site is information only and is not intended to be used as legal advice. Please consult your counsel for specific legal advice.