Many people know that an H-1B visa is based on a job offer from a U.S. employer. Unfortunately, this is not the only requirement for a successful H-1B petition; many other specific requirements exist.
This article lists the main criteria that USCIS requires of an employer filing an H-1B petition. If you plan to file an H-1B petition in 2008, you should ensure that your employer meets all of the following requirements; otherwise, you risk having your application denied.
Main Requirements
There are two main requirements for the employers of H-1B employees: ability to pay and business need.
- Ability to Pay
The employer must be able to pay the H-1B employee his or her wages—which must be greater than or equal to the minimum prevailing wage as specified by the Department of Labor.
Basically, the company must prove that it has the financial means to pay the employee that wage, regardless of the company’s size or whether it is currently making a profit.
For example, if a company’s investment funding exceeds the employee’s salary, then that company is technically able to pay that employee. A company that has signed a contract for future work could also prove its ability to pay an employee even if it does not yet have sufficient cash flow or equity reserves to do so—provided that the contract will go into effect by October 1, 2008.
- Business Need
Only bona fide job offers are eligible for H-1B petitions. This means that the employer must have a genuine business need for the H-1B employee. An H-1B job offer cannot be superfluous or phony—i.e., something that is created for the sole purpose of obtaining an H-1B.
Other Requirements
There are a few other requirements that H-1B employers must also meet.
- The employer must pay the H-1B employee the higher of:
- The actual wage rate that it pays to other employees with similar experience and qualifications.
- The prevailing wage level for the occupation in the area of intended employment.
- Employment of the H-1B worker must not adversely affect the working conditions of workers similarly employed.
- There must be no current strike/lockout involving the prospective H-1B worker’s position at his or her workplace.
- The employer must provide notice of filing of the labor condition application to the employee’s collective bargaining representative for the H-1B occupation or, if there is no such representative, must conspicuously post such notice at the work site on or within 30 days before the labor condition application is filed.
- The employer must maintain certain documentation for public examination:
- A copy of the filed labor condition application.
- Documentation of the salary paid to the H-1B employee.
- An explanation of how the actual wage was determined.
- Documentation of the basis used for determining the prevailing wage.
- The employer must agree to pay the alien the reasonable cost of transportation to his or her home country if the employer terminates employment before the end of the authorized employment period.
Employers that break any of these rules can be fined and suspended from participating in the H-1B program and other immigrant programs for a year or more.
H-1B Dependent Employers
Companies that hire many H-1B employees risk becoming “H-1B dependent.” A company is considered H-1B dependent if:
- It has 25 or fewer full-time employees, and more than 7 are H-1B employees.
- It has between 20 and 50 full-time employees, and more than 12 are H-1B employees.
- It has more than 50 full-time employees, and 15% or more are H-1B employees.
H-1B dependent employers must submit to these requirements (in addition to those listed above):
- They must list their dependency status each time they file a labor condition application to support an H-1B petition.
- They must declare that in the past 90 days (before the filing date), they have not displaced or laid off a U.S. worker “in an equivalent job,” either in their own workforce or in that of another employer—nor will they do so in the next 90 days.
- They must not place an H-1B employee with another employer—for instance, in a contract position—if doing so would displace a similarly situated U.S. worker.
- They must make a good-faith effort to recruit a U.S. worker for the position, and they must hire any equally or better qualified U.S. worker who applies for the position.
EXCEPTION: An H-1B dependent company does not have to follow these requirements for an H-1B worker who either earns at least $60,000 per year or holds a master’s degree or higher in a field related to his or her job.
Let Zhang & Associates Help You Through the H-1B Process
This article describes the main employer requirements for H-1B petitions. Keep in mind that this is simply an overview; it would be impossible to list all the information that a prospective H-1B employer or employee needs to know.
Zhang & Associates’ immigration attorneys can give you more information about specific requirements and determine how they apply to you. We can also ensure that your complete and accurate H-1B petition arrives at USCIS on April 1, 2008, giving you the best possible chance of approval.
If you plan to file an H-1B petition in 2008, you can email us at freeevaluation@hooyou.com for a free consultation with one of our experienced immigration attorneys. We respond to most inquiries within 24 hours.
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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nation-wide in all aspects of U.S immigration laws. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
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