The minimum requirements for filing an H-1B include:
- Proof of the existence of an employer-employee relationship. This means that the company must have the ability to hire, fire, pay, supervise and control the employee’s work. Company ownership can be proven with organizational documents (e.g., Articles of Incorporation or Operating Agreements), Shareholder and Voting Agreements, Stock Option Programs, Securities Instruments and similar documentation. This is important not only for proving the existence of a valid company, but also that the H-1B worker isn’t actually being hired as an independent contractor. Therefore, the employer is also required to furnish the worker with all the tools needed to perform the job and with access to proprietary information.
- 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 the published by the U.S. Department of Labor (DOL) in making that determination. Other documents that can be used to support the specialization include expert opinions on the relationship between the degree and the job; affidavits and job listings from competitors or industry peers hiring for parallel positions; past job postings from the company reflecting that the same minimum degree and qualifications were required.
- Documentation supporting that the business has a genuine business need to hire the H-1B 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; the company’s most recent tax returns or audited financial statements reflecting that net income is equal to or higher than the proposed salary; an affidavit from the company’s CFO confirming its ability to pay the salary; or financial statements or tax records showing the company’s net current assets are equal to or greater than the proposed salary in the covered years.
- Proof that the salary is equal to or greater than the prevailing wage. Geographic location is taken into account in addition to the type and level of the position, as well as related factors. This is proven usually with a Labor Certification Application (LCA) – certified by the DOL – that confirms that the employer is or will be paying wages that are consistent with those paid to similar workers in similar positions with comparable educational and experience levels.
- 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 affectthe 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. (There is no such obligation is 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 Application Process
There are three steps:
- The company files an LCA with the DOL making all the certifications listed above.
- 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.
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