Michael A. Pezzuto

Attorney at Law

 

(805) 604-9555

Business Visas
Text Box: If you are an U.S. Employer who needs an alien employee to fill a position that requires a Bachelors degree or higher the H-1B visa may solve your problem. H-1B PROFESSIONAL WORKERS: What does the Employer do? Qualify as a U.S. Employer The employer must have a federal tax identification number. Foreign businesses not established in the United States cannot use this visa to bring employees here. Obtain an Approved Labor Condition Application The employer must prepare and file a Labor Condition Application (LCA) with the Department of Labor (DOL). The LCA is a form that must be carefully prepared and posted in two conspicuous places at the work site. It requires the employer to describe the position and salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions and the giving of notice and must comply with provision of the Davis/Bacon Act if necessary. Once the LCA is approved, the employer files a petition with the US Citizenship and Immigration Services (USCIS), a part of the Department of Homeland Security (DHS). The employer must document that the position requires the services of a person in a “specialty occupation”. This means a person who is working in a professional position that requires a minimum of a bachelor’s degree or its equivalent in education and/or experience in a specific field related to the job. What are the Employer’s Liabilities? Completing the LCA is just the beginning. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situation employees. Upon request, these records must be provided to DOL’s Wage and Hour Division. If an employer does not document the wage, pay the required wage, or maintain the require records, the employer could be liable for substantial penalties, including back pay and fines of up to $ 35,000.00 per violation. The employer could even lose the right to apply for H-1B workers as well as all other immigrant and nonimmigrant petitioners for up to three years. Employers may be required to pay a fee for each H-1B application; check with your attorney to see if a fee is currently mandated. If the employer terminates the service of the employee prior to the expiration of the H-1B status, the employer is responsible for paying the employee’s return transportation to his or her last foreign residence. What is an H-1B dependent employer? An “H-1B dependent employer” is one who has employed more than the specified percentage of H-1B workers relative to the workforce, determined by the size of the employer.  Dependent employers have in the past been required to comply with additional attestation requirements. Check with your attorney to see if any of these rules are currently applicable. What does the employee do? The employee must prove that he or she is qualified for the specialty occupation and the specific job offered by the employer. The employee must be able to show that his or her foreign university education and/or work experience is the equivalent of a U.S. degree. Workers in the United States who currently hold a valid nonimmigrant visa may apply in the United States of H-1B status. For example, if a worker is in lawful student status (an F-1 visa), he or she may seek a change from F-1 to H-1B. This change gives the person the ability to work in the United States for the sponsoring employer. However, the H-1B employee may change employers if the new employer files a petition on his or her behalf. If the worker needs to travel abroad, he or she will need to apply for an H-1B visa at a U. S. consulate. Workers not in lawful status in the United States or those residing abroad must apply for an H-1B visa at a U.S. consulate; they may not apply for H-1B status in the United Sates. What are the Employee’s Liabilities? Under current law, a person who fails to maintain status (e.g. by engaging in unauthorized employment, or by staying beyond the authorization period) may be required to depart the United Sates and may be ineligible to return, depending upon how long such failure to maintain status existed. How Long Can the H-1B Employee Remain in the United States? The H-1B is a temporary status with specific limitations on periods of stay in the United States. The initial petition may be approved for up to three years. After the initial period, three more years are available. The employer must update or refile the LCA and must file H-1B petition extensions. After six years, the worker must spend one year outside the United States before he or she is entitled to have another H-1B visa. Many workers on the H-1B visas obtain permanent residency status (the “green card”) during their initial stay in the United States. H-1B visa holders pursuing a green card may, in some cases, extend their stay beyond the six-year limit. The H-1B employee’s spouse and unmarried children under 21 years old may be granted an H-4 visa. H-4 visa holders are not permitted to work in the United States. They may, however, attend school. I have had five years of experience in assisting U.S. Employers in obtaining H-1B visas. If you are interested in contacting me and finding out more information regarding H-1B visas, please click here to fill out a fillable form that will be emailed to my office or you can call my office to set up an appointment to determine if I can be of service to you. Text Box: “When dealing with immigration, having the correct information is absolutely a necessity to prevent any problems with filing immigration work properly… you have properly completed all the immigration filings in order for the INS to give us a favorable ruling.” Respectfully, Susan DiGennaro Human Resources DP Technology