Preparing for April 1 - the Beginning of New H-1B Season

by Dinh Tran, Partner, Queen City Immigration Law. (704) 741-9002

April 1 is the filing date for the annual allotment of 85,000 new H-1B visas (or statuses for those already in the United States and changing status to H-1B) that becomes available at the start of each fiscal year on October 1. The H-1B visa allows a foreign national to enter and remain in the United States to work in a specialty occupation for up to six years. A specialty occupation is one that requires highly specialized skills and knowledge to perform the work duties and at least a baccalaureate degree to enter the profession. Of the 85,000 new H-1B visas made available each year, 65,000 are general purpose and the remaining 20,000 are reserved for holders of a master’s or doctorate degree from an accredited U.S. institution of higher education.

Because of the high demand for this type of non-immigrant status and visa in the past decade, the USCIS has only been accepting petitions for new H-1Bs in the first five business days of April. Such a short filing window requires employers and their attorneys to carefully prepare and file complete petition packages. Even the slightest defect, such as a wrong amount on the check for the filing fee, can result in the petition being returned. A returned petition is practically a lost cause since by the time the defect can be corrected and the petition resubmitted, the filing window will have already passed.

With approximately four months until April 1, there is still ample time for employers wishing to hire foreign workers and sponsor their H-1B status to carefully and diligently prepare for the filing season. All employers hiring H-1B employees are required to take certain steps before filing a petition with the USCIS. Completing these requirements weeks and months ahead of April 1 greatly reduces the risk of filing a defective petition due to time constraints.

First, employers who have decided to add a foreign national to their workforce on an H-1B must announce this to their existing employees in same occupational classification as the new hire and working at the same site where the new hire will work. This can be accomplished by (1) delivering a notice to a bargaining representative, (2) posting a message in an inconspicuous place, such as the notice board or the company’s webpage, for at least ten days, or (3) sending a one-time email. The notice should include detailed information regarding the new hire’s position, including compensation, benefits, work duties, required skills and knowledge, and period of employment.

Second, no later than 30 days after giving the notice above, the employer must file the Labor Condition Application (LCA) with the U.S. Department of Labor. The purpose of the LCA is for the employer to attest to the government that the employer does not undermine the labor market and the job prospects of American workers. Each employer, by filing the LCA, is affirming that

  1. it is paying the foreign worker at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question or the prevailing wage level for the occupation in the area of employment, whichever is higher;
  2. the employment of H-1B employee will not adversely affect the working conditions of workers similarly employed in the area of intended employment;
  3. on the date the LCA is signed and submitted, there is not a strike, lockout or work stoppage in the course of a labor dispute in the occupation in which H-1B worker will be employed at the place of employment; and
  4. a copy of the LCA has been, or will be, provided to each H-1B worker and notice of the LCA has been provided to other workers employed in the same occupation as the new hire.

Third, employers must ensure that all labor disputes with their existing workforce is resolved to avoid a possibility of a lockout, strike or any other work stoppage as a result of the labor dispute. If there currently is a lockout, strike or any other work stoppage, employers must act swiftly to end all such work disruptions.

Fourth, all the documents created in the course of completing the steps in the three paragraphs above should be placed in a public file. Specifically, it must contain

  1. the LCA;
  2. rate of pay for the H-1B worker;
  3. description or summary of the actual wage system;
  4. prevailing wage rate and its source;
  5. documentation that the notice requirement was satisfied;
  6. summary of benefits offered to U.S. workers and H-1B workers;
  7. list of entities included as a “single employer”; and
  8. in the event of corporate change, a) a sworn or notarized statement by successor entity accepting all liabilities of predecessor entity, b) list of H-1B workers transferred to successor entity, c) each affected LCA number and effective date, d) a description of successor entity’s actual wage system, and e) successor entity’s employer identification number.

This public file must be accessible to the public on demand for viewing, scanning, photographing, or transcribing within one business day after filing the LCA with the DOL and kept at the employer’s principal place of business or at the worksite where the H-1B employee will be working.

Finally, employers should prepare financial documentation to establish that they have the ability to pay the wages, salaries and other benefits of their existing workforce as well as the offered wages, salaries and other benefits of the H-1B employee.

Completing the steps enumerated above early in the year will ensure that plenty of time is left before April 1 and leave more time for a careful and diligent preparation of a complete H-1B petition package.

Please contact the attorneys at Queen City Immigration Law to assist you in preparing and filing a petition for your company’s specialty occupation employee.