Friday, August 3, 2007

Free Trade Agreement Visas - H-1B1

The H-1B1 visa is for an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit

2. A specialty occupation is one that requires theoretical and practical application of a body of specialized knowledge, along with at least a bachelor’s degree in the specific specialty.

a. Agricultural Manager is recently included for persons under Chile

3. Under current law, the cap for H-1B visas to Chileans are: 1,400 and Singaporeans: 5,400

a. The cap does not apply to applicants filing for extensions, transfers and amendments. Also does not apply to those filing through institutions of higher learning, nonprofit organizations, and government research organizations.

4. The H-1B1 visa allows for multiple-entry and is valid for 18 months

a. H-1B1 status lasts for a maximum period of six years at a time

b. Extensions are granted in one year increments, but after six years, an alien must remain outside the US for one year before another H-1B petition can be approved

i. Extensions or change of employer require the filing of the I-129 (with supplemental Labor Condition Application, H-1B Data Collection Supplement)

5. Applicants can get a visa directly at a US consulate – No DHS petitions are required

Application Process

1. Employer (petitioner) must first ensure that the worker will be paid at least 100% of prevailing wages paid to similarly employed workers in the geographic area where the beneficiary will be employed. Employer must also ensure that it is not paying less than actual wage paid to other similarly qualified employees.

a. Once the wage information is established, a Form ETA 9035 Labor Condition Application( LCA) must be submitted to the Department of Labor

b. The LCA must be submitted electronically unless lack of physical ability or access to the internet prevents the Employer from doing so.

i. The purpose of the LCA is to

1. Ensure US wages are not depressed by hiring foreign labor

2. Foreign workers are not exploited

ii. On the LCA, employer must:

1. Specify wage to be paid

2. Specify the prevailing wage

3. Make certain attestations

iii. Filling out the ETA 9035 (LCA)

1. Employer must first contact the State Workface Agency (SWA) to establish the prevailing wage (arithmetic mean of wages of workers similarly employed in the area of intended employment)

a. Submit the “Prevailing Wage Request”

b. After the prevailing wage has been established, employer must fill out the LAC to the Department of Labor

2. Other attestations employers must make on the LCA

a. Specify number of workers sought; occupational classification for each; prevailing wage (source/method for obtaining it), and actual wage rate and working conditions.

b. Employer will pay the required wage, which is at least 100% of the prevailing wage or actual wage paid to other employees in same position

c. Employment of foreign workers will not adversely affect working conditions of US workers

d. When LCA was filed, there was no strike or other work stoppage because of a labor dispute

e. The beneficiary will be given a cop of the LCA, and the petitioner has notified bargaining representative if the job is unionized, or if not, has posted in a conspicuous place notice that an LCA was filed

*Attestation must be made available for public inspection within one day of filing with the DOL

3. After the LCA is electronically submitted, it must be printed and signed by the employer immediately after ETA provides the electronic certification. This signed form must be maintained int the employer’s file, a copy of the signed form must be maintained in the public access file, and another copy submitted with the I-120 (if applicable)

2. After the LCA is filed, the employer must establish a public access file including

a. Copy of the LCA

b. Statement/document of actual wage to be received by H-1B worker

c. Full, clear explanation of system used to set the ‘actual wage’ paid in the position (ex: memo to file summarizing system/copy of employer’s pay system)

d. Copy of document used in establishing prevailing wage

e. Copy of notice given to union/employees

f. Summary of benefits offered to US workers in the same occupational classification –a statement as to how any differentiation in benefits is made if there are any

*Where employer undergoes change in corporate structure – a swon statement by responsible official of new emplying entity that it accepts all obligations under LCA’s filed by predecessor employing entity, together with a list of each affected LCA and date of certification, description of actual wage system and EIN of new employing entity.

*Where employer utilizes definition of “single employer” in the Internal Revenue Code – list of any entities included as part of single employer in making H-1B determinations

3. H-1B dependents are defined as:

a. Employers having over 50 employees; at least 15% of workforce is comprised of H-1B visa holders

b. Employers having 26-50 employees; employs more than 12 H-1B workers

c. Employers having 25 or fewer employees; employs more than 7 H-1B workers

i. If the employer is H-1B dependent:

1. Employer must attest that it has not/will not displace a US worker during the period from 90 days before the H-1B petition is filed until 90 days afer it has been filed

2. Employer must attest to good faith steps to recruit US workers for the job

4. Response to the LCA will be given within 7 days of filing

a. ALL records must be retained one year beyond LCA period

5. Admission lasts for one year – with extensions granted in one year increments.

a. After every second extension, new LCA’s are required (Approved LCA lasts 3 years)

6. Applicant must submit proof that he has no intention of abandoning his residency abroad and becoming an LPR

7. After an LCA is obtained, the application must present evidence convincing the USCIS of three basic truths

a. Employer has legitimate need for “specialty occupation worker”

i. Easiest to demonstrate, but may be problematic for small or new companies

ii. Can show evidence relating to stability of business (tax returns, payroll records)

b. Position offered is a “specialty occupation”

i. Carefully define and describe the job

ii. Where specialty nature of position is not evident, employer may refer to Trade and association publications, affidavits from authorities in the field, employer’s own hiring practice for the position

c. Prospective employee is qualified for the position

i. Documentation for alien’s education/experience

1. Diploma, transcripts, course descriptions

2. If alien did not attend school I n the US, their degree must be evaluated by a credentials evaluation service to ensure it is at least equal to US bachelor’s degree

3. Can also demonstrate work experience that they have equivalent of a bachelor’s degree. This requires affidavits from former employers outlining responsibilities and skills learned while there.

4. Under USCIS rules, 3 years of work = one year in college