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Memorandum on H1 B Processing:
The basic requirement for approval of an H-1B petition by INS is to show that the job involves a specialty occupation. This is generally defined as a job requiring at least a Bachelor's degree or equivalent work experience in a specialist field. The person being sponsored (the beneficiary) must meet this standard. If a license is required to perform the duties, then the beneficiary must also have the appropriate license.
In order to obtain the H-1B visa, a labor condition application must be filed with the Department of Labor and approved prior to filing the I-129 petition with the Immigration Service. The application, with the certifications must be submitted to the Labor Department for approval. The Labor Department will only review the application to ensure that it is complete. The enforcement in the system is through record keeping and a "complaint driven" system.
The regulations require posting of notice in atleast two conspicuous places. The Labor Department suggests posting in immediate proximity to any wage and hour notices or occupational safety and health notices. The notices must be posted before the filing of the labor condition application and must remain posted for a total of 10 business days. However, you need not have to wait 10 days to file the application, but can do so on the 1st day of posting.
There are four labor condition statements. The first is that the employee will be paid the actual wage for the occupation at the place of employment or the prevailing wage level for the occupation in the area of employment, whichever is higher. This means that the employee must be paid at least what other employees similarly employed are paid and that the wage level must be at or above the prevailing or average wage level for the occupation in the area of employment.
This determination can be made either by submitting a job description to the local labor department and obtaining a statement from the Labor Department as to the prevailing wage or by reliance on an "independent authoritative source." An independent authoritative source is any well-recognized wage study conducted within the last 24 months. Your assistance in identifying any existing survey for this position will be of great assistance.
Further, the employment of the employee must not adversely affect working conditions of workers similarly employed. In addition, on the date the application is signed and submitted, there must not be a strike, lockout, or work stoppage. Lastly, there is the requirement of the posting notice discussed above.
There are significant records keeping requirements. A copy of the labor condition application must be retained, as well as a copy of either the state employment services wage determination or authoritative wage survey relied upon. Further, the documentation must include information about the employer's pay rate to employees in the area of intended employment in the occupational classification. The employer must maintain payroll records on all employees in the occupational classification beginning with the date the labor conditions application is submitted and continuing through the period of employment. Payroll records must identify the employee, home address, occupation, rate of pay, hours worked, earnings on a daily or weekly basis at the regular rate, overtime compensation by week, total additions to or deductions from pay, and total wages paid each period, date of pay, and pay period covered by the payment by employee. It is expected that many, if not most, employers already keep this documentation. The payroll records need not be made available for public inspection.
The working condition requirement is quite vague. A declaration attesting to the lack of adverse effect on U.S. workers' working conditions is sufficient. Working conditions refer to matters such as hours, shifts, vacations and fringe benefits. There is no specific documentation required to be kept on record. However, if a complaint is filed, the employer must be able to come forward and show the lack of adverse effect.
The third condition is that there is no strike or lock out. Again, there is no particular documentation required. In case of an investigation, the employer must establish there was no strike or lock out.
Finally, the posting notice must be kept with the labor condition application - with a notation as to the dates and locations of the posted notices.
Public access is mandated by the Labor Department regulations. Within one working day after the date of filing with the Labor Department, the public has a right of access to the labor condition application, the documentation of the wage level (the survey or state employment service determination), and a copy of the posted notice. The public is not entitled to the payroll records. Only the Labor Department is entitled to that information.
The information that is available to the public must be retained for one year beyond the date of employment specified on the labor condition application. However, payroll records must be retained for a period of three years from the date of the creation of the records.
Potential penalties for violations of the regulation include back pay awards, civil monetary fines, and debarment from use of the H-1 and the permanent immigration process. However, reliance on a state employment service survey protects the employers from any claim that it has not paid the prevailing wage. In addition, reliance on an independent survey will generally be sufficient.
This procedure is supposed to be summary in nature. The Labor Department anticipates that it will handle these applications in a "stream-lined" manner. A maximum of 30 days are required to complete the process in significantly less time.
Finally, the employer must state that if the employee is dismissed prior to the completion of the period set forth on the petition, the employer would be willing to return the employee to his/her home country. However, the Immigration Service has made it clear that this application is between the employer and the employee and the Immigration Service will not be involved in the enforcement of this provision.
It is very important that all the information contained in the petition is accurate. Any information that is not accurate must be communicated to my office. The INS and DOL both have severe penalties for false or inaccurate information.
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