We share our Web site with The Law Offices of David Stanton
Mr. Stanton's Office provides an expertise in Business Visas for the Pacific Rim. His practice is not limited to Canadians, but has kindly provided additional information on the H-1 visa.
LAW OFFICES OF DAVID STANTON
110 West "C" Street
San Diego, California 92101
This section details requirements for H-1 status for professionals in specialty occupations.
Most of the following requirements can be proven by information provided in a covering letter from the company applying for H-1B status (the petitioner) for the employee (the beneficiary)
To qualify in the H-1B professional category, both the h-1B worker and the position must be professional in nature. The law defines a profession as a specialty occupation that requires the critical and practical application of a body of highly specialized knowledge. In most cases, this will be one of the easiest requirements for high tech, or biotech, companies to meet. Engineering and computer specialty occupations, as well as occupations in the hard sciences, are clearly "professional".
For the foreign worker to be a designated professional, he or she typically must have completed a specific course of study at an accredited college or university. That study must have culminated in at least a bachelor's degree. Finally, such a degree or its equivalent must be the minimum requirement for entering the position in the United States. To prove this requirement, at least a diploma and an evaluation stating the equivalent U.S. degree must be submitted Acceptance into a U.S. graduate degree program is usually a sign that the degree received overseas is the equivalent of a U.S. bachelor's degree.
Some people with a certain level of professional experience can overcome the bachelor's-degree requirement by carefully documenting those special qualifications. This documentation must include a certain level of education, specialized training, and/or professional experience.
A Labor Condition Application ("LCA") must be filed with, and endorsed by, the U.S. Department of Labor before a petition for an H-1B visa can be made with the Immigration Service.
The Labor Condition Application for H-1 status is not the same as a Labor Certification for a green card. [See below for a discussion of the labor certification process.] It is much easier and faster to get. You do not have to place a help wanted ad in the newspaper. You do not have to provide supporting documents. You do have to have the supporting documents on file in case you are audited.
The form is deceptively simple. The Labor Department only "approves" it by checking whether or not you filled out the form correctly. Even so, almost 25% of the applications are denied merely because the form is not filled out correctly. Also, remember that if you are ever audited, you must have had all the supporting documents on file or face penalties.
An employer can file the application for more than one person at once. If you do this, make sure you have supporting documents on file for all beneficiaries. Possible penalties include civil money penalties, payment of back wages to the H-1B, and debarment of the employer from employing foreign workers in the future. As is the case with other government forms, intentional misrepresentation can result in criminal perjury sanctions. The message: employers should make sure that their files are complete and updated.
On the Labor Condition Application Form ETA 9035 [available from this office], the employer makes four important statements. For each statement, the employer must immediately have supporting documents in its files. The files containing these documents must be made available to the public at any time.
Here is a summary of the four required statements with examples of required documents for the employers' files:
The salary offered the H-1B beneficiary must be at least the greater of one of the following:
According to Department of Labor rules, U.S. companies which employ foreign workers in H-1B status must develop and document an objective system for determining the wages of all employees, and must show where the H-1B workers' salaries fit within that system. In developing the system, the employer must take into consideration objective standards relating to experience, qualifications, education, job responsibility, and specialized knowledge. Department of Labor representatives have indicated that it is not sufficient for a U.S. employer to keep an ad hoc "actual wage" determination for each H-1B employee on file; the file must document a system which is used for setting the wages of all employees, including H-1B workers.
Employers have objected to this requirement, on the basis that salaries are most often set by means that are not readily susceptible to systematization, such as negotiation, competitive factors, and market forces. Since most employers, even large ones, do not have the "objective system" required by the regulations, it is unrealistic to expect them to develop one simply because they have one or more H-1B workers on their payroll. The Department of Labor, so far, has not responded to these concerns. If there are no other people working at substantially the same job, the actual salary figure will be the salary figure the employer pays the beneficiary.
It is also difficult and time-consuming to show that the salary is prevailing for the job in the area. You can show a prevailing salary in one of three ways. The first is a "safe harbor"; if you use this method, the Department of Labor will accept this as the correct salary and will not challenge it during an audit. The other two ways are acceptable, but if audited, the burden will be on the employer to demonstrate the legitimacy of the information.
A customized State Employment Security Agency Salary Determination Request, in writing, is made to the State Employment Security Agency ("SESA") with jurisdiction over your area. In California, this is State of California Employment Development Department, office of Alien Labor Certification. If you are unable to wait for the determination, order it, and rely on another legitimate source of wage information in the meantime [See below]. Even if the subsequent SESA survey is higher, this is still a safe harbor if the employer retroactively compensates the H-1 for the difference.
A survey conducted by an independent authoritative source. This must be published in a book, newspaper, periodical, loose-leaf service, newsletter or other similar medium within the 24-month period preceding the filing. It must be published by an organization with a recognized expertise in the field. It can be a professional, business, trade, educational or governmental association, organization, or other similar entity, not owned or controlled by the employer. An employer must pay the median salary listed for the particular position in the survey. This is not a safe harbor.
Another legitimate source of information This is also not a safe harbor.. You can have a professional do the salary survey for you. The prevailing salary data must survey jobs requiring a substantially similar level of skills. It must survey salaries within the geographical area of intended employment. This geographical area is the area within normal commuting distance of the place of employment. Use a Metropolitan Statistical Area to define normal commuting distance. If there are no such jobs in the area of intended employment, you can look at areas outside the area of intended employment.
Although a SESA survey provides a safe harbor, this does not necessarily mean that a SESA survey is the best way to go. Many employers have come to the conclusion that SESA determinations are inaccurate, inconsistent, and often unrealistically high. (The Department of Labor itself recognizes that there are problems with SESA prevailing wage determinations.) A common problem with many published surveys, on the other hand, is that they are not organized by "area of intended employment" and are therefore not valid for LCA purposes. Although contracting with a professional to do a salary survey may seem to be the ideal solution, the cost is often prohibitive.
The employer must get a new copy of prevailing salary information when it files an application to extend the foreign worker's H-1 status and adjust the rate of beneficiary's pay upwards if the prevailing rate exceeds beneficiary's actual pay. Remember, you must have data showing both the salary actually paid to employees and the prevailing salary. This is because the employer must pay the greater of the two figures. The employer should maintain records on prevailing and actual wages for at least a one-year period after the end of the beneficiary's employment. If the employer withdraws his H-1B application, or if a labor complaint is pending, the employer should maintain such records for a year as well.
Hiring the H-1B worker cannot hurt the hours, shifts, vacation periods and fringe benefits of other U.S. workers. There are no clear rules regarding which documents are necessary to have in your files to prove this requirement. Examples include published studies, surveys or articles regarding working conditions at your work site. Fringe benefit packages, and office policy manuals which pre-existed the employment of the H-1B, are additional examples.
There can be no strike or lockout from a labor dispute in beneficiary's job at the work site. In the case of an investigation, the employer will have the burden of proof in showing that there were no relevant labor problems in the job classification.
The employer must have publicized the fact that it intends to hire an H-1B. The employer must also publicize certain proposed employment terms for the H-1B. This is so that any interested party can challenge the employer's statements and trigger a Labor Department audit.
This publication occurs through the posting of a notice of intent to employ an H-1B worker. Two notices should be posted for at least 10 days. It is advisable to put the notice up for 14 consecutive business days to avoid mistakes. Post the notice in two conspicuous places at the prospective work site(s). This includes the work sites of your clients, if one or more of your H-1B employees will be working there for more than 90 days, or if the site is located within commuting distance of your office or factory. Keep copies of the notices in your file.
Although the regulations state that the posting of exact copies of the LCA shall be sufficient to meet the requirements of posting, posting of the actual LCA is not required. Rather, some employers have found it preferable to post a notice which contains the following information:
A U.S. employer can file an application to grant H-1B classification to a foreign worker for a temporary period of up to six years. The employer must establish that the beneficiary meets the qualifications of the classification and that the position is a specialty occupation.
The following documents should be submitted with an H-1B application:
The H-1B application is filed by mailing Immigration and Naturalization Service form I-129 to the INS regional center for the region in which the employer is located. For employers located in California, the H-1B application (INS form I-129) should be sent to:
Immigration and Naturalization Service
California Service Center
P.O. Box 10129
Laguna Niguel, CA, 92067-0129
Please contact us if you would like to review a copy of the form. It takes approximately 6 weeks to two months for the INS to approve the petition (application).
Please note that under the new regulations, in the event the employer dismisses the H- 1B alien from employment before the end of the visa duration, the company will be responsible for the costs of return transportation to his or her residence abroad.
Established in May of 1979, the Law Offices of David Stanton is dedicated to handling immigration matters for high-tech and biotech companies in San Diego and throughout the United States.
We tailor the services we provide to the needs of our clients. For many clients, we prepare and file the applications for the admission to the U.S. of international transferees and other temporary skilled workers. Other clients use our services to review temporary nonimmigrant applications or permanent residence applications which they primarily handle through their own staffs. In such cases, we confer on complicated or unusual matters or undertake difficult applications.
We promise to return all telephone calls within eight hours, and to mail out applications or other documents within three days of receiving all required information.
Mr. Stanton received his Bachelor of Arts degree from the University of California, Berkeley, and his Juris Doctor degree from Western State University in San Diego, California. Since completion of his law studies in 1979, Mr. Stanton has specialized in the area of business immigration. Mr. Stanton has served as the Chairperson of the Immigration Section of the San Diego County Bar Association and Chairperson of the San Diego Chapter of the American Immigration Lawyers Association. He has also served on the Board of Directors of the American Immigration Lawyers Association and is currently Co-Chair of the Labor Certification Committee and a Congressional Liaison for that Association. He is a frequent author and lecturer on immigration law topics.
Mr. Stanton speaks fluent Spanish and Mandarin Chinese.
Kayoko Oyama is the senior legal assistant with the law offices of David Stanton. Ms. Oyama was born and raised in Yamagata, Japan, and received her Bachelor of Arts degree in English and American Literature from Sagami Women's University, just outside of Tokyo. Ms. Oyama has been with the Law Offices of David Stanton for the last fifteen years, and is in charge of handling the large number of Japanese companies and individuals who are clients of this office. Ms. Oyama has overseen the development of the office's Japanese client base, which currently includes the San Diego operations of several large, well-known Japanese companies.
Ms. Oyama speaks fluent Japanese and English.
Joanna Tsai is a legal assistant with the Law Offices of David Stanton. Ms. Tsai was born and raised in Taipei. Prior to coming to the United States, Ms. Tsai was a student in the Law Department of Fu Jen University. She completed her Bachelor of Arts degree in Urban Studies and Planning at the University of California, San Diego. Ms. Tsai has been with the Law Offices of David Stanton for eight years
She speaks fluent English and Mandarin Chinese.
Yoichi Miyazaki is an intern at the office. He currently attends the University of San Diego, pusuing a degree in Business Administration. His duties in the office evolves mainly around the computer. Born and raised in Japan, he speaks English and Japanese fluently.
Gary Brenner is Of Counsel to the Law Offices of David Stanton. Mr. Brenner is a California attorney who specializes in all legal aspects of establishing and operating small to medium size businesses. Mr. Brenner's areas of expertise include corporate formation and maintenance, contract and lease negotiation, trademark registration, and civil litigation. Mr. Brenner completed his legal education at the University of San Diego and has been practicing law for the past nine years.
Mr. Brenner is the author of "The Complete Handbook for the Entrepreneur," a legal guide to starting and operating a business. He is also a consultant to the Professional Book Publishing Division of Prentice Hall Publishers, in business law areas.
© 1995 Law Offices of David Stanton
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