The H1B Visa: An Employers’ Guide

0
113

There are several concerns that have caused the regulations around the H1B Visas to be tightened. A new bill is waiting to be passed which can further cut down on the ability of US companies to hire foreign talent. On top of that, the various promises and vows by presidential candidates like Hillary and Trump have made the H1B Visas a much-debated issue.

There are indeed many loopholes and drawbacks of the system which have lead to the misuse of H1B Visas. It is mostly the company that benefits from these loopholes while the foreign employees and the country are at the receiving end. The biggest problem is the discrimination against native workers who are at times laid off to be replaced by low-paying foreign labor. Donald Trump claims the system promotes foreign workers over American workers and stands against the right of local labor.

Some companies like Disney, Abbott, Toys “R” Us have been found to replace native employees with foreign counterparts because of their age and nationality. The employees were not always able to protest as some companies require signing an agreement of non-disclosure and non-disparagement which prevented them from criticizing their company. They had to sign the document or let go of a significant chunk of their severance pay. There are many lawsuits filed by employees against their companies for discrimination they had to suffer in hands of the companies.

The rule of minimum wage exists but sometimes it can be bypassed and frauds have occurred where the foreign workers were paid less than their salary mentioned in the paper. Two Indian-American brothers were arrested recently who hired H1B Visa workers without actual posts and made them work in other consultancies for low fees. The employees could not lodge any complaints in fear of losing their jobs and the opportunity to work in the US. Obtaining an H1B Visa is not an easy process and requires to be backed by a US company sponsoring the whole process. Companies have to establish the non-availability of native resources which compels them to go for foreign labor. Companies sometimes file false papers with wrong information to get access to the cheap foreign talent pool.

Difference Between H1B Normal Processing and Premium Processing

When applying for an H1B Visa, you are given two options – Normal processing and Premium Processing. Your chances of getting an H1-B visa approval don’t increase if you choose a certain processing option. The only difference is in the time it would take to process your application.

However, here are some significant differences between the two processes:

• Normal processing doesn’t need you to pay any extra fees whereas Premium processing requires you to pay an additional filing fee of $ 1,225.

• Although each case is unique, the usual turnaround time for premium processing is two weeks (14 – 15 days) whereas the normal processing would take anywhere between 8 weeks to 24 weeks (2 – 6 months); the difference is massive.

Does USCIS have any specific deadlines to process H1B applications?

As far as we can remember, USCIS does not mention any turnaround time to act in response to your H1B visa petitions. It’s important to consider that USCIS handles several other aspects of immigration and do not set any timelines for visa approval unless you opt for premium processing.

Should you go for Premium Processing?process

Unless you are extremely curious to know whether your H1B visa has been approved or rejected or you want to be thoroughly prepared in advance, we wouldn’t recommend you to pay such a huge fee just for an expedited response.

Remember that you cannot start working until three months after filing the petition.

However, if you really can’t wait to find out the decision, here are a list of things that you can do:

1. You can pay the extra fees and upgrade to premium processing. Note that you cannot do this by yourself. Your employer has to initiate the processing through an attorney.

2. Some experienced people say that you could request your attorney to contact the USCIS to ask for a status update. Although this may not always work, there’s no harm in trying.

3. You could look up the service center where you filed your H1B petition and extract information about their processing times for a rough idea. To do this, you can log onto their official website and check your status.

Now that you know the difference, you can decide which type of processing you want.

What do H1B Dependent Employers Need to Know?

When it comes to being designated as an H-1B dependent employer, that usually means that the company has about eight H – 1B workers out of a total workforce of twenty-five, or thirteen out of a total workforce of fifty. Either way, the company would have to apply for LCA’s for all workers and ensure that they are compliant with all the standards and requirements as laid down by USCIS.

Remember, both the Department of Labor and USCIS will conduct surprise audit checks to ensure full compliance with all their regulations. Failing to comply with these will lead the company being heavily penalized, along with being listed as willful violators which essentially means that any petition you send in, will not be accepted.

As a US H1B dependent employer, you would be required to submit and attest additional documentation, starting with a statement that you have taken steps to recruit US workers and then offered the post to others and that the wages offered are similar to prevailing rates.

While you would still be required to advertise the job first so that American workers can apply for the same, it is important that you document the process to show that you have complied with this requirement later on to the Department of Labor. More importantly, when your dependency notification changes from one to another, you cannot use the same LCA and would be required to apply for a new one for your worker.

Similarly, when you change the address of your company and relocate elsewhere, you would be required to reapply from the start. These are some of the things that you, as an H -1B dependency employer would need to be aware of.

While the visa process is refundable, the stringent checks and verification process makes the H – 1B visa program to be one of the most rigorous and complicated ones. With new rules being introduced and with sweeping changes being forecasted, expect the process to get overhauled as a whole. While the process may seem taxing to anyone, and it is, it is still one of the most in demand visas in the world today.

Are H1B Visa Workers Paid Less than Native American Workers?

Recently a bill is making its way to being passed in the USA which hinders American companies hiring foreign applicants. The much talked about H1B Visa is given to specially skilled persons expert in areas of science, technology, engineering and math (STEM). The topic seems to be a favorite in presidential politics which each candidate sharing their own view and opinions. Some vow to make the laws more stringent while others deal it with caution citing interest of families and existing immigrants residing in the country.

The Common Belief with H1B Visas

The common belief is that a company needs to pay less salary and wages to an H1B Visa worker than a native worker. The discrimination will lead to displacement of the US workers and create work loss for them. This is the main reason the politician and lawmakers are looking to make the rules strict and limit the issue of such visas.

H1B Visa Workers Cost More to the Company

Contrary to the popular misconception, an immigrant worker on H1B Visa cost the company more than a native worker. The immigrant workers have to be paid standard wages mandated by federal law which is in no way lesser to native worker salaries. Along with the wages, the company has to bear the additional cost in the form of allowances, accommodation or transportation which are not required in case of an American worker.

The company also has to pay for the work permit in most cases. They incur the expenses in relation to the application of the H1B Visas and also at times handle costs afterwards. According to a study by Brookings Institution under Rothwell and Ruiz, it was found that H1B Visa immigrants are paid more than US-born native workers equipped with a bachelor’s degree.

USA should be increasing the number of permissible applications under the H1B Visas. USA needs its job to be filled by adequately skilled workers to stay competitive and profitable in the market. If it does not have the labor force to meet the demand of jobs, the rules of immigration should be relaxed to encourage foreign labor to fill in the gap.

What should Employers Seeking H1B Do Right Now?

On April 3, 2017, USCIS starts accepting H1B visa applications with respect to the fiscal year 2018 cap. Successful beneficiaries for FY 2018 on H1B petitions can start work in the US from October 2017.
Processing H1B visa takes time from several weeks to months, involving both employer and employee to provide necessary information and documentation.

A lot of documents and information collection occurs between immigration counsel and petitioning employer, like fulfilling posting and notification requirements, the collection of salary information and resolution of issues regarding assessing job requirements and description and finalizing terms of employment.

What should Sponsors be Doing Right Now?
The recruiting entity must file an LCA with the US’s DOL. The DOL takes a week typically to process once the application has filed. Employers must file LCAs in January to be processed by the end of February.

If employers provide the offered pay rates and job description, they can research on the prevailing wages for the position regards.

If the sponsoring agency has never sponsored an H1B petition earlier, it has to file its FEIN to the DOL. After receiving the LCA certificate, the sponsor must draft form I-129. The form requires every detail regarding the employer and the prospective worker.

The sponsor must also specify the letter explaining why the position believed a specialty occupation and why the concerned worker is capable for the occupation.Us passport, law, legal,citizenship,immigration concept image

HR must set the expectations up-front and presume the burden of petitioning as an H1B sponsoring employer. The employee accordingly must corporate and submit the relevant documents and information promptly.

It is very important to send the petition with no errors. It may lead to rejection. Rejection at this time can be too late to re-file. The employer must verify for all the relevant basic information and documents to be produced by the employee.

During this period from January to March end you have to follow various steps regarding the petitioning. The employer must approach a good attorney to file the petition and to overcome any further issues like getting delayed due to mistakes. You can avoid mistakes by considering the help of a professional attorney.

What Documents are required for H1B Transfer?

When a company offers you a job in the US, and you accept the same, you become an H1-B worker once your petition is approved. Primarily, it is the company that would be filing all the paperwork on your behalf and would require you to submit a set of documents which they would review and append to their H1-B petition.

Do remember, documents that are not correct can lead to your H1-B petition being declined. Once you are established in the US and working there, a new company can offer to hire you and sponsor your H1-B application. Once you accept their offer, you would be initiating the process of H1-B transfer. As with the first petition, the sponsor company would require you to submit valid documentation to append to your new US H1-B petition.

What Documents do You need for H1B Transfer?
These are some of the documentation that would be required, starting with two pays stubs from your previous employer, copies and documentation of prior H1-B approval along with the latest LCA filed by your last company on your behalf.

Additionally, you would be required to submit your passport, income tax returns, and W2 forms. At times, the USCIS can issue an RFE or a request for evidence when you can file your tax returns with them. Of late, the USCIS has become more stringent about companies not complying with fair wage requirement and would evaluate to see if the candidate was benched when on H1-B status.cover

Both the income tax forms and W2 forms will help USCIS determine if the company in question was paying you fair wages. When companies fail to comply with the basic requirements as set out by USCIS, it can lead to the petition being revoked immediately and action would be taken against the company for being discriminatory.

USCIS is aware that some companies have threatened to withhold the W2 forms as a way to retain the employee and prevent them from accepting posts with another company. And as such, the USCIS now requires all employers to postmark their W2 forms by Jan 31st. These are some of the documents you would be required to submit when transferring to a new company.

Can a H1B visa holder do volunteer work?

It is a very common doubt among the H1B visa holders if they can volunteer for some charity in the USA. Based on several factors including the visa type and the status of the person willing to work voluntarily, you can be allowed to work on volunteer service. You have to abide by certain guidelines in able to do so freely without breaking any law.

The case with H1B visas

An H1B employee can work for compensation under a US employer. He is generally not allowed to do volunteer work, generally if it is paid.

Why is there such a rule?

It is useful to understand the motive of government in setting up such regime, to differentiate if volunteer’s work is authorized or not. The main motto of USCIS is to prevent foreign citizens with employment restrictions engaging in work which benefits them over US nationals. The main concern is that it can drive down American’s benefits or wages.

So for a volunteer work, which is paid is not productive for H1B visa holders. The reason is that if you work without being paid in a job which can else be filled by Americans who would be paid, you are undermining the authority of employment authorization system’s goal and cutting the benefits or wages of American job holders.

How can you volunteer legally?vl

However, for the true volunteer work for which you are not seeking or receiving any benefits, then you are eligible to offer your work. Like volunteering for an NGO, church, school, fire-station where there isn’t any compensation or employment making it legal.

You can volunteer without receiving any credits to the work you provide while holding H1B visa as a non- American. You must not receive any payments, and there should not be any employer-employee relationship.

Having an EAD cannot be an issue to work as a volunteer. Even if they are paying and you are not willing to accept the pay, then it’s a potential risk for you as you are ruining the benefits or wages American’s may receive. It is better to look for volunteering jobs which where repayment is the satisfaction of doing something good!

Can a H1B Beneficiary Work with More than One Employer?

It is a common question among H1B visa seekers whether they can work for more than one employer while in USA. We have prepared a guide for such people looking for accurate information. We will provide various cases to illustrate how multiple employers and H1B visas are related.

Can you Work for More than 1 Employer on H1B?

The USCIS does not prevent a H1B worker from working for more than one employer. But each employer will have to file a separate petition on behalf of the alien worker. The applications have to be filed at the designated Service Centers which hold the jurisdiction over the area of the applicant’s work zone or training. It is to be noted that there has been a change of stance on USCIS’s part and now they do not recognize the concept of co-employers. Each employer has to file a separate H1B petition for the beneficiary.

Termination of Services with 1 Employer

According to the rules of USCIS, it is not necessary for the beneficiary or the employer to initiate any action if services are discontinued with one employer. But for this to work, the other H1B petition must be valid for the current period with the other employer. The USCIS will revoke the petition for the discontinued employer upon receiving notification for them.

Common Cases of H1B and Multiple Employers

  • A beneficiary takes employment in company A while having another approved petition from company B. Now the beneficiary leaves company A for some reason and joins company B. It will not require a new or amended petition.
  • A H1B worker can take leave for extended periods of 6 to 8 months from company A and work for company B. He can rejoin company A again without requiring a new petition.
  • In case of parent and subsidiary companies, the beneficiary may switch between the two without new petition. Both agencies need to have approved H1B petitions for this purpose.

Till now the USCIS provides notice before a petition is revoked. But with change of rules the revoke will be automatic once USCIS gets the notification of discontinuation of service with a petitioner.

How to Safely Terminate a H1B Employee?

 

H1B workers are non-immigrants working in specialty occupations in USA. As an employer you may have one or several H1B employees working at your organization. At times you may have to terminate them or the employees themselves bring an end to the contract voluntarily. You need to be extra careful while terminating a H1B worker and abide by the regulations of Immigration and Nationality Act (INA) and Code of Federal Regulations (CFR). Follow the below mentioned tips when you face a situation of employee suspension to remain safe and abide by the law.boss-finger-point

Inform USCIS

The USCIS needs to be notified of any termination of an H1B worker by the employer for non-performance of job responsibilities. In proper contracts, employers are generally responsible for providing the expenses related to the transportation of the H1B employee back to the location mentioned on the visa. If you fail to pay the expenses, the contract still remains valid attracting payment of wages.

The USCIS also has to be informed if the H1B worker terminates the contract voluntarily before the mentioned period. The company will not be required to pay any wages and the transportation charges are also excluded.

Payment for Non-Productive Status

An employer is responsible for compensating the H1B employee for any non-productive time arising out of lay off for a period of 1 week. It is calculated on pro-rata basis based on the wage rate decided by the LCA for that timeframe.

The employer is not responsible for paying wages if the H1B worker voluntarily applies for leave or resignation unrelated to his employment. Exceptions occur only when the employee is covered by FMLA or other acts.

No Discrimination of Wages

In case of voluntary resignation by employee, you cannot deduct penalties or decrease their wages. It is violation of the employee’s legal rights and will land you in trouble.

Communicate with Employee

The decision to terminate an employee should be communicated in written terms. The process for reimbursement of transportation costs should also be laid down.

The process of termination may turn challenging and sometime the employer’s emotion may cause a negative impact on the process. It is wise to consult an attorney who will be able to provide effective consultation and solution.

LEAVE A REPLY

Please enter your comment!
Please enter your name here