Law Offices of Elise Schwarz

An H-1B visa holder who is terminated is no longer in lawful status. There is no “grace period” for a terminated employee – the date of termination is the date the visa-holder becomes out of status.

 If a terminated employee gets a new job offer and files a new H-1B petition, s/he can arguably port and accept a new position upon the filing of the new petition. The USCIS has authority to use its discretion to excuse the “late” filing of the petition. However, in the event that it does not, the employee may have to leave the US and obtain a new visa when the H-1B petition is approved.

 If an H-1B visa-holder is dismissed before the end of the period of authorized stay, even if for cause, the employer is required to withdraw the H-1B petition to ensure that it is no longer required to pay the wage of the terminated employee. In addition, the employer is liable for the reasonable costs of return transportation of the beneficiary to the beneficiary’s last place of foreign residence. However, the employer is not liable for these costs where the employee has voluntarily terminated the employment. Failure to pay the employee’s costs of transportation will likely only affect the employer’s future H-1B petitions, since no other penalty is specified.

 This does not constitute legal advice. If you need legal advice you should contact an attorney.

H-1B Portability, Issues In the Transferring of the H-1B Visa When the Petitioning Employee Changes When the H-1B Holder Switches Jobs
The transfer of an H-1B visa from one employment to another is referred to as “portability.”

If an H-1B visa holder wishes to change companies s/he must file an amended H-1b petition.

An H-1B holder can accept new employment from the moment the new petition is physically received by the USCIS, so long as :

• He/she was lawfully admitted;
• The new petition is non-frivolous;
• The new petition was filed before the date of expiration of the period of stay authorized by the Attorney General; and subsequent to such lawful admission, the H-1B beneficiary has not been employed without authorization before the filing of such petition.

The portability of the employment authorization continues until the new petition is adjudicated.

When the Petitioner’s identity changes, but the H-1B visa holder’s job remains the same.
When the petitioning employer undergoes a corporate restructuring, such as a merger, acquisition, consolidation, etc, or when a new corporate entity succeeds to its interests and obligations, so long as the terms and conditions of employment remain the same, an amended H-1B petition is not necessary. (this applies even where the corporate EIN has changed).
Where there is a successor employer and the H-1B holder is returning to the US, s/he should present a letter stating that the corporate entity has succeeded the previous employer and that the terms and conditions of employment remain the same.

This does not constitute legal advice. If you need legal advice you should contact an attorney.

It’s H-1B Season: Start Preparing the LCA!

On April 1, 2008, USCIS will begin accepting filings for H-1B employment for fiscal year 2009, which begins on October 1, 2008. However, that start date is a de facto deadline: undoubtedly, USCIS will also cease to accept filings on that date too.

Since 2004, the H-1B program has been subject to an annual cap of 65,000 visas awarded to holders of bachelors degrees, or their equivalent, with a further 20,000 visas being made available to those with advanced degrees received from U.S. Universities.

For fiscal year 2008, the first day to file an H-1b application was April 2, 2007. On that day, the USCIS received more than 130,000 – at least double the number of visas it is allowed to allocate – and all on the first date of filing. These applications became subject to a lottery – an unprecedented measure – and half were thereby rejected, without regard to their merit. The advance degree visas were exhausted by the end of the month.

There is no doubt that the same manic filing will happen again this year, and no doubt either that a huge number of meticulously prepared applications will be tossed aside for another fiscal year.

That said, the U.S. still has plenty of need for those in specialty professions, and clearly, the demand of professionals wishing to come to the U.S. to work is still just as high.

It is therefore more important than ever to ensure that an H-1B application is as perfect as can be: even if the applicant wins this newly enforced lottery, he or she still needs to have his or her application approved, and only the very best applications will survive.

The Labor Condition Application (LCA)

The LCA is a pre-requisite to H-1B approval. The employer must file form ETA-9035 with the Department of Labor (DOL). Once the DOL certifies the LCA, the employer must file it with the H-1B petition.

The LCA should be submitted online in early March 2008 in order to be approved and to be available in time for the April 1, 2008 filing deadline.

The LCA form asks for information regarding the proposed employment, such as, rate of pay, period of employment, and work location.

In it, the employer makes the following attestations:

1. Prevailing and Actual Wage: it is paying, and will continue to pay, the H-1b employee wages that are at least:
   1. the actual wages paid to others with similar experience and qualifications for the specific job at the proposed place of employment; or
   2. the prevailing wage for the occupational classification in the area.

(whichever is greater. )

2. No Adverse Affect on Similarly Employed Workers: it will provide working conditions for the H-1B employee that will not adversely affect the working conditions of workers similarly employed in the area;
3. No Strike: there is no strike or labor dispute at the place of employment;
4. Posting: it has
   1. provided notice of this filing to the bargaining representative (if any);
   2. if there is no such bargaining representative, it has posted notice of filing in at least two conspicuous locations at the place of employment for a period of ten days.

Employers who are H-1B dependent or willful violators must make two additional attestations on the LCA:

1. attestation of no displacement of protected US workers
2. attestation of prior recruitment.

An H-1B Dependent Employer is defined as an employer who has:

1. 25 or less full time equivalent employees and more than seven H-1B employees, or
2. 26-50 full time equivalent employees and more than 12 H-1B employees; or
3. at least 51 full time equivalent employees and at least 15% H-1B employees.

A Willful Violator Employee is one who has:

1. been found to commit a willful failure or misrepresentation in LCA compliance in the previous five years

When an Employer Fails to Live Up To Its Attestations?

Sanctions for Employer’s LCA violations include back pay, civil fines, and disqualification from USCIS approval of future immigrant petitions.

Public Disclosure/ Access File

The employer must create and maintain a public access file to document compliance in each H-1B case. This file must include:

1. Copy of the LCA (with employer’s original signature and cover pages);
2. Documentation of the wage to be paid to the H-1B employee;
3. Explanation of the system used to set the actual wage;
4. Copy of prevailing wage determination from SWA or description of survey of other source used;
5. Copy of notice to union, if applicable, or postings;
6. Summary of benefits plan to the H-1B employee showing that it is the same as that offered to similarly employed US workers.

Documents which must be added to the file on or before the H-1B employee’s first day of work:

1. copy of certified LCA with signature of H-1b employee as proof that s/he received a copy;

Documents to be added as and when appropriate:

1. documentation regarding any adjustment to the wage (raise, etc);
2. where the employee undergoes a structural change and does not choose to file amended petitions for each H-1B employee, a sworn statement from the new employer that it accepts all obligations under the LCAs filed by the predecessor employer and a list of the affected LCAs;
3. where the employer uses the definition of a single employer to determine H-1B dependency, a list of entities included;
4. where an employer is H-1B dependent or a willful violator, evidence of recruitment of US workers
5. Where an employer is H-1B dependent or a willfull violator, but indicates that the LCA is for “exempt” non-immigrants, a list of the “exempt” employees.

This does not constitute legal advice. If you need legal advice you should contact an attorney.