Monthly Archives: March 2012

U.S. Employer Obligations to H-1B Employees

The Quick and Dirty on U.S. H-1B Work Visas

Just about every employer, HR professional or recruiter has heard of the H-1B visa, which allows foreign nationals to work in the United States. But what exactly is this visa all about? Does anybody qualify? Are there restrictions on the types of jobs? This article will give you the “quick and dirty” on H-1B visas specifically tailored for HR professionals and employers.

What is the criteria for an H-1B visa?

The H-1B allows foreign nationals to work for US employers in a “specialty occupation,” such as lawyers, doctors, physical therapists, graphic designers, account managers, etc. Approval of an H-1B visa requires meeting certain criteria: 1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position being offered; 2) the degree requirement for the position being offered is common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree; 3) the employer normally requires a degree or its equivalent for the position being offered; and 4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher (i.e. Master’s, MBA, J.D., PhD., etc.)

How many visas are issued each year?

65,000 H-1B work visas are issued every fiscal year. Congress has allotted an additional 20,000 visas for employees with a master’s degree or higher. The fiscal year begins on October 1st and the USCIS begins accepting applications on April 1st. Prior to the 2008 recession, the 85,000 cap was reached within the first month. Since then, it has taken much longer – up to nine months – for the cap to be reached. However, the US economy has been showing signs of improvement and it is expected that US employers will start hiring more foreign workers this year.

What are a US employer’s obligations towards an H-1B employee?

First of all, it is important to note that an employer does not owe any additional obligations towards an H-1B employee with respect to “at-will” employment. In other words, an employer still has the right to dismiss an H-1B employee without cause (while obviously refraining from discrimination based on race, gender, etc.).

That being said, employers do have some obligations that are imperative to abide by in order to ensure H-1B compliance. First, employers must pay the H-1B employee the prevailing wage as determined by the Department of Labor. Simply stated, the employer must pay the employee equal to, or more than, the salary/wages that similarly situated employees in the same profession and geographic region are paid. The employer must maintain this wage information in a public examination file at the place of employment throughout the validity of the H-1B. U.S. employers must also attest that the employment of H-1B employees will not adversely affect the working conditions (work schedules, vacation policies, etc.) of U.S. workers similarly employed, and H-1B employees will be offered benefits on the same basis as U.S. workers similarly employed.

Conclusion

The H-1B process may seem complicated to employers who have not had to deal with hiring a foreign national. However, it is one of the most popular and sought after visas because it allows U.S. employers to hire highly skilled workers. Moreover, the employer’s obligations are not so prohibitively imposing that it would preclude the hiring of a foreign national whose skills may otherwise be hard to come by.

Cedric M. Shen – Attorney at Law; www.maxlawinc.com