Important First Step
Check your prospective Employee’s Immigration Status:
- If you are planning to hire someone who would need sponsorship to continue working for you
- What they are asking is to change or extend their existing immigration status
- Hence, when an employer files an H-1B visa petition for someone who is in the United States, it is asking USCIS to change and/or extend that person’s immigration status
- The presumption is they have an unexpired existing status
It is not easy to change (almost legally impossible) to change or extend the status of someone whose status has expired.
In these situations, consulting an immigration attorney can help determine whether other possibilities exist.
Preliminary Steps Towards Hiring an H-1B Worker Who is Already Lawfully Present in the U.S.A.
As the employer, you first must establish the prevailing wage for the position, which is the statistical average wage for workers in the job in the same area
What is the Prevailing Wage According to The United States Department of Labor?
“The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment”.
The “prevailing wage” is either the applicable wage under a collective bargaining agreement such as a public-school teacher or if there is no union, the average wage paid to workers in a particular occupation in a specific geographic location.
When there is no collective bargaining agreement, you can determine the prevailing wage in three ways:
- Request a formal prevailing wage determination (PWD) from the DOL by submitting the job description via an online system
- Review the DOL’s wage data and determine the appropriate occupation and wage level on your own
- Use a private wage survey that meets the DOL guidelines. You either can conduct your own wage survey (which, as a practical matter, could be difficult given the requirements outlined below), or purchase a survey from a firm that collects and analyzes wage data
How to Access the Wage Rate for a Particular Job?
- Effective January 4, 2010, employers can obtain this wage rate by submitting a request to the National Prevailing Wage and Center (NPWC)
- By accessing other legitimate sources of information such as the Online Wage Library, available for use in some programs”
- Online Wage Library or Foreign Labor Certification Data Center are used interchangeably
Note on Standard Occupational Classification
- Since September 1999, the Standard Occupational Classification (SOC) has been used by the OES program to classify occupational wage information
- The SOC provides a common language for categorizing occupations. It also serves as the framework for information being gathered through the Department of Labor’s Occupational Information Network (O*NET)
- The O*NETprovides the general public information on skills, abilities, knowledge, tasks, work activities, and the specific vocational preparation levels associated with occupations
- O*NET information can be found at https://online.onetcenter.org/. Wage data from the OES survey and occupational information in O*NET are both classified by the SOC, reducing the need to use crosswalks to connect wages to occupational requirements
You can also use a private wage survey. However, the DOL’s criteria that a private wage survey must satisfy are the following:
- The data supporting the survey must have been collected within two years of the survey’s publication date.
- The survey must be the most current edition and less than two years old.
- The survey must include wage data for the commuting area where the job is located.
- The survey’s job description must match the job description for the H-1B worker.
- The wage data must come from a cross-section of industries that employ individuals in a particular job.
- The survey must provide an arithmetic mean (weighted average) salary.
- The survey must follow a statistically valid methodology
What is the Minimum Wage Requirement for All Employment-based Visas?
- The requirement to pay prevailing wages as a minimum is true of most employment-based visa programs involving the Department of Labor
- In addition, the H1B, H1B1, and E3 programs require the employer to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher
You can find more details about prevailing wage here
For the updated processing timelines check out https://flag.dol.gov/processingtimes
U.S. Department of Labor periodically updates these timelines.
When Can I file The Petition?
- If the H-1B candidate you’re planning to hire already has H-1B status and was counted against a prior year’s quota, you can file your visa petition at any time
- However, if the candidate is subject to the quota, it gets more complicated for example they worked for a nonprofit and was eligible for cap-exempt H-1B
What is Form I-129?
“Petitioners use this form to file on behalf of a nonimmigrant worker to come to the United States temporarily to perform services or labor, or to receive training, as an H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 nonimmigrant worker. Petitioners may also use this form to request an extension of stay in or change of status to E-1, E-2, E-3, H-1B1 or TN, or one of the above classifications for an alien”.
Filing an I-129 Form for Your Prospective Employee
- To sponsor an H-1B worker, the employer must file an I-129 petition with USCIS, asking the agency to approve the foreign worker for H-1B status
- Depending on the person’s current status, the employer asks USCIS either to extend the person’s status or to change and extend the person’s status
Required Documents to Include with the Petition
- Forms I-129 Petition for a Nonimmigrant Worker, H Classification Supplement to Form I-129, and H-1B Data Collection and Filing Fee Exemption Supplement
- Both the I-129 Petition and H Supplement require signatures. The Data Collection form does not require a signature
- Support letter from the employer confirming the job offer to the foreign worker and explaining the terms and conditions of the proposed employment
- Copies of the foreign worker’s educational degrees and transcripts. If the degree and transcript are from another country, include a U.S. equivalency evaluation report
- Copies of the foreign worker’s identification and current immigration documents, as applicable (passport, visa, I-94 Arrival/Departure Record, USCIS Forms I-797 for prior applications or petitions, SEVIS Form I-20 for F-1 students, etc.)
- Documentation to show that the foreign worker/prospective employee is maintaining lawful status in the U.S., such as transcripts for F-1 students or paychecks for H-1B workers
- Base Filing Fee ($460 as of 2021)
- Fraud Prevention and Detection Fee: $500 as of 2021
- ACWIA Fee, unless an exemption applies: The 2021 fees were $750 for employers with 25 or fewer full-time employees or $1,500 for employers with more than 25 full-time employees
- Public Law 114-113 Fee, as required for employers that have 50 or more employees in the U.S., more than 50% of whom are in the U.S. in H-1B or L status ($4,000 as of 2021)
- Certified Labor Condition Application (“LCA”) from the U.S. Department of Labor (DOL). As mentioned above, you need to determine the prevailing wage and then file the LCA by using the Department of Labor’s FLAG portal. It usually takes a week to receive the certified LCA
H-1B transfer is a multi-step process of which determining Prevailing Wage is the most complex. You can make a guestimate about your wage level, by using different online tools. However, consulting an attorney might give you a better idea. our office will be happy to analyze your case’s specifics and provide some suggestions, as every situation is different