To lend H-1B sponsors a helping hand this cap season, we’ve enlisted the assistance of VISANOW-retained attorney Karen Gillespie. Each month in our attorney Q&A series, she’ll answer questions to help you prepare a strong work visa petition.
Karen GillespieDo you expect that the number of petitions for 2016 will be as large as 2015?
Karen Gillespie: It is, of course, impossible to predict how many H-1B petitions will be submitted in the H-1B cap lottery each year. However, it is generally expected that the 2016 H-1B cap lottery will have a similarly large, if not larger, pool of applicants as was received in 2015.
What are the employer's responsibilities in terms of costs and expenses for H-1B sponsorship?
KG: According to the H-1B statutes, the only fee that must be paid exclusively by the employer is the ACWIA (American Competitiveness and Workforce Improvement Act) fee. All other fees and costs are negotiable between the employer and employee, but those fees must be deducted from the offered wage.
The offered wage minus any fees paid by the employee for the H-1B petition cannot be below the required minimum wage [for that position]. Therefore, if the required minimum wage as determined by the U.S. Department of Labor (DOL) is $50,000 and the company offers exactly $50,000 to the H-1B employee, then the employee cannot be required to pay any fees associated with the H-1B. That’s because those fees, once subtracted from the offered wage, would cause the actual wages to be below the required minimum wage.
Many employers prefer to pay all costs associated with the H-1B filing to avoid any issues regarding the wage.
When should the application preparation process begin in order to file by April 1, 2016?
KG: It is advisable to begin preparation right now. Most employers open cases in late January to early February. By starting early, you are likely to get more attention from your attorney, and more time to correct and identify any possible issues.
If you file for premium processing of the H-1B, are you guaranteed a spot in the lottery?
KG: There is no way to “guarantee” a spot in the H-1B cap lottery. The only way a candidate’s chance of approval can improve is if he or she possesses a U.S. master’s degree or better, because there are an additional 20,000 H-1B visas available for such employees. Otherwise, every petition has exactly the same chances of being chosen in the lottery. It’s truly a random process.
Does the company's position requirement need to include a master's degree for the employee to be eligible for the lottery of 20,000 additional visas?
KG: The position itself doesn’t need to require a master’s degree, but the academic field in which the master’s degree was earned must be related to the sponsored H-1B position.
What is the ideal date to apply for the Labor Condition Application (LCA)?
KG: It is best to file the LCA in February or early March. However, it can be risky to file in late March — if there’s an unanticipated delay, the LCA won’t be certified before the filing deadline in early April.
If the company offers a wage that’s comparable to wages for similar positions at the company, but lower than the minimum wage requirement, is it necessary to increase the employee wage?
KG: H-1B employees must be paid at least the minimum wages listed by the DOL or accepted wage survey. The required wage is based on the location, job type, and required education and experience. The offered wage may be equal to the required minimum wage but cannot be less than the required minimum wage.
Failure to pay the listed wages on the LCA and H-1B petition can result in fines and sanctions from the government, as well as open up the company to a civil suit filed by the H-1B employee.
If a company believes the DOL-listed wages are incongruous with its market, the company can subscribe to a third-party wage survey. If the DOL accepts the validity of that survey, it may certify wages that are less than those listed on the DOL database. However, the DOL must certify the offered wage for an H-1B, and the employer must continue to pay the H-1B employee at least the listed wage for the entire validity period of the H-1B, unless it is amended or withdrawn.
By starting early, you are likely to get more attention from your attorney and more time to correct and identify any possible issues.
What visas are available if the foreign national isn’t selected for H-1B processing?
KG: This varies based on the experience, education and nationality of the employee. It also depends on the structure of the employer’s company and any relation to qualifying foreign entities. Examples of possible alternatives include:
- TN NAFTA (North American Free Trade Agreement) Professionals
- E-1 Treaty Traders
- E-2 Treaty Investor
- E-3 Certain Specialty Occupation Professionals from Australia
- L-1B Intracompany Transferee for Employees With Specialized Knowledge
- H-1B1 Free Trade Agreement Professional from Chile or Singapore
- F-1 Student Visa with Optional Practical Training or Curricular Practical Training
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Note: Content in this publication is not intended as legal advice, nor should it be relied upon as such. For additional information on the issues discussed, consult a VISANOW-retained attorney or another qualified professional.
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