Here’s how the process works:
- The company files a Labor Certification Application (LCA) with the U.S. Department of Labor (DOL) making all the required certifications (as listed below).
- After the LCA is approved, the company files a Form I-129 requesting H-1B status for the employee and submits all supporting affidavits, documents and fees.
- After the Form I-129 is approved, if the employee is already inside the U.S., they are allowed to begin working on the start date; if they are outside the U.S., they are entitled to use the approved Form I-129 (and underlying documents) to apply for the H-1B.
Here are the employer requirements:
Proof of the existence of an employer-employee relationship – the company must have the ability to hire, fire, pay, supervise and control the employee’s work.
Proof that the position qualifies as a specialty occupation and at a minimum requires a Bachelor’s Degree (or its equivalent – e.g., license, certification or registration) that is related to the job. The USCIS relies on thepublished by the U.S. Department of Labor (DOL) in making that determination.
Documentation supporting that the business has a genuine business need to hire the H1B worker.
Proof that the employer has the financial means to pay wages for the foreseeable future. The ability to pay must be proven with the employee’s pay stubs or recent W-2s.
Proof that the salary is equal to or greater than the prevailing wage. This is proven usually with a Labor Certification Application (LCA) – certified by the DOL.
Proof that the foreign worker’s education level and experience are commensurate with the job’s requirements.
Certification from the company that the employment won’t adversely affect the working conditions of similarly situated workers.
Certification that there’s no strike or lockout implicating the worker’s job.
Confirmation from the company of its legal obligation to pay the worker’s reasonable costs of transportation back to their home country in the event of a premature termination (but not if the employee quits.)
Confirmation from the company that it is obligated to observe anti-discrimination laws with respect to foreign workers (e.g., no discrimination on the basis of national origin, gender, etc.).
Confirmation from the company that it’s obligated to extend to the foreign worker the same benefits provided to U.S. employees (e.g., insurance, sick days, time off, stock options, vacation and any other benefits).
Confirmation from the company that it’s obligated to observe the same policies, procedures and laws that apply to U.S. workers with respect to bonuses and promotions.
The USCIS will begin accepting new H-1B quota based visa applications on April 1, 2016. The earliest date to start work on those visas will be October 1, 2016. As a reminder, the cap on regular H-1Bs remains at 65,000 and at 20,000 for US Master Degree H-1Bs.
Please message me directly if I can answer any additional questions you have about H-1B visas, green cards or other related matters. Also feel free to check outfor additional help with questions related to H-1B visas, employer requirements and any related issues.