By: David H. Nachman, Esq.
Ludka Zimovcak, Esq.
Snehal Batra, Esq.
Samantha Oberstein, Esq.
Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C.
 
The H-1B visa program permits a United States employer (“employer”) to temporarily employ nonimmigrants to fill specialized jobs in the United States. The Immigration and Nationality Act (the “INA” or the “Act”) requires that an employer pay an H-1B worker the higher of the actual wage or the local prevailing wage, in order to protect U.S. workers and their wages. Under the Act, an employer seeking to hire a foreign national in a specialty occupation on an H-1B visa must receive permission from the Department of Labor (“DOL”) before the foreign national may obtain an H-1B visa. The Act defines a “specialty occupation” as an occupation requiring the application of highly-specialized knowledge and the attainment of a bachelor’s degree or higher. The Act requires an employer seeking permission to employ an H-1B worker to submit and receive an approved Labor Condition Application (“LCA”) from the DOL.
 
The employer should be extremely cautious in making attestations on the LCA and complying with the regulations governing it. Knowingly and willingly furnishing any false information in the preparation of the LCA and any supporting documentation, OR even aiding, abetting, or counseling another to do so is a federal offense, punishable by fine or imprisonment up to five (5) years or both. Other penalties may also apply to the fraud or misuse of the LCA and to the perjury with respect to the ETA 9035.
 
Where and When Should Employers Post Notice of the LCA?
 
The notice requirement of an LCA mandates that employers post notice of their intent to hire nonimmigrant workers. An H-1B employer must provide notice of the filing of an LCA. When there is a collective bargaining representative for the occupation in which the H-1B worker will be employed, the employer must provide such notice to that collective bargaining representative by way of a copy of the LCA or other document which contains all the required information.
 
When there is no bargaining representative, the employer must provide such notice in one of the two following manners. A hard copy notice of the filing of the LCA must be posted in two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed (whether such place of employment is owned or operated by the employer or by some other person or entity). Alternatively, the electronic notice of the filing of the LCA may be posted by providing electronic notification to employees in the occupational classification (including both employees of the H-1B employer and employees of another person or entity which owns or operates the place of employment) for which H-1B nonimmigrants are sought, at each place of employment where any H-1B nonimmigrant will be employed. Further, the H-1B employer is required to post notice on or within 30 days before the date the labor condition application is filed and should remain posted for a total of 10 days.
 
In situations involving H-1B workers working at end-site users (third party placements), it is the duty of an H-1B employers to post the notice of filing of the LCA at the secondary sites. Even if the H-1B employer makes a good faith attempt to post notice but the end-site user refuses to post notice at its worksite, the H-1B employer will be found to have substantially and willfully violated the law. The end-site users have no obligation under the Act to post the notice.
 
Additionally, the posting requirement mandates that employers note and retain the dates when, and locations where the notice was posted and to retain a copy of the posted notice.
 
Additional Obligations for H-1B Dependent Employers and Willful Violators.
 
An employer is considered H-1B dependent if it has: 25 or fewer full-time equivalent employees and at least eight (8) H-1B nonimmigrant workers; or 26 - 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or 51 or more full-time equivalent employees of whom 15 percent or more are H-1B nonimmigrant workers.
 
An employer whose dependency is not readily apparent or is on the borderline may use the “snap- shot” test. The snap-shot test requires a comparison of the total number of all H-1B workers to the number of the total workforce (including H-1B workers). If a small employer’s snap-shot calculation shows that the employer is dependent, the employer must then fully calculate its dependency status. If a large employer’s calculation exceeds 15 percent of its workforce, that employer must fully calculate its dependency status.
 
The employer is a willful violator if the employer has been found at any time during the past five (5) years preceding the date of the application (and after October 20, 1998) to have committed a willful violation or a misrepresentation of a material fact (two of the Labor Condition Application (LCA) attestations). A willful violator employer must comply with additional attestations under any LCA it files within five (5) years of the finding of a willful violation. The only exception is when an LCA is filed for and used exclusively for exempt H-1B workers.
 
H-1B dependent employers and/or willful violators must attest that they have not displaced a U.S. worker at the time of filing an H-1B visa petition. Additionally, H-1B dependent employers and/or willful violators are required to make displacement inquiries. Displacement inquiry is an obligation of the H-1B dependent employers and/or willful violators when they desire to place an H-1B nonimmigrant with another/secondary employer where there are indicia of an employment relationship. Further, such employers must attest that they have taken good faith steps to recruit U.S. workers, and that the employer offered the job to any equally or better qualified U.S. worker who applied for the job for which the H-1B worker is sought.
 
An Employer’s Duty to Keep Records of Wages Paid to H-1B Employees.
 
The Act also provides that the LCA, filed by the employer with the DOL, must include a statement to the effect that the employer is offering to an alien status as an H-1B nonimmigrant, that wages for H-1B visa holders are at least equal to 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 occupational classification in the area of employment, whichever is higher, based on the best information available at the time of filing the application.
 
Decades back while addressing a claim brought under the Fair Labor Standards Act, the United States Supreme Court in a landmark decision held that once an employee shows that he has performed work and was not properly paid for it, and he produces sufficient evidence of the amount and extent of work as a matter of just and reasonable inference, the burden shifts to the employer to produce evidence of the precise amount of work that was performed or evidence to negate the inference created by the employee’s evidence. The Court explained that it is the employer’s duty to keep precise records and that such a burden should not fall on the employee and bar the employee from recovery when such records cannot be produced.
 
Thus, acting on the sufficient evidence produced by the employee, if the Administrator of the Wage and Hour Division (WHD) establishes that the employer has failed to properly compensate the H-1B nonimmigrant worker then the employer bears the burden of establishing the existence of circumstances that warrant the wages not being paid or benefits not being offered, by a preponderance of the evidence. Failure to do so would result in the employer being held liable for the payment of back wages and other financial remedies.
 
Back Pay Liability Not Subject to One-Year Statute of Limitation.
 
DOL accepts complaints by aggrieved persons or organizations or through its own initiated investigation relating to misrepresentation or failure of the employer to meet the conditions stated in the LCA. An aggrieved employee has 12 months after the latest date on which the alleged violations were committed to file a complaint; however, this Statute of Limitations does not apply to an employer’s back pay liability.
 
If the employer fails to pay an H-1B worker the “required wage,” it can be ordered to pay back pay or make-up the deficiency. The regulations require the WHD Administrator to determine whether an employer has the proper documentation to support its wage attestation. The Administrator may contact the Employment and Training Administration (ETA), a part of DOL, to get the prevailing wage. The regulation is permissive, and the ETA’s determination is merely an option that the Administrator can use in its investigation. If the employer fails to support, through proper documentation, how it arrived at the prevailing wage level, the Administrator can use the employer’s Letter of Support and I-129 Forms submitted to the United States and Citizenship Services (USCIS) for the approval of H-1B petition in determining whether the employee was appropriately classified at the specific wage level.
 
Civil Money Penalties for H-1B Violations and Debarment for Non-Compliance.
 
The WHD Administrator may assess Civil Money Penalties (CMPs) not to exceed $5,000 per violation for a willful violation pertaining to wages. The Administrator may also assess a penalty not to exceed $1,000 per violation for displacement of U.S. workers, a substantial violation pertaining to notification, labor condition application specificity, recruitment of U.S. workers, or a misrepresentation of any material fact on the LCA.
 
The regulations require the Administrator to consider seven factors for the assessment of CMPs: (1) Previous history of violation, or violations, by the employer; (2) The number of workers affected by the violation or violations; (3) The gravity of the violation or violations; (4) Efforts made by the employer in good faith to comply with the provisions of the law and regulations; (5) The employer’s explanation of the violation or violations; (6) The employer’s commitment to future compliance; and (7) The extent to which the employer achieved a financial gain due to the violation, or the potential financial loss, potential injury or adverse effect with respect to other parties.
 
Moreover, the regulations state that an employer that willfully fails to pay wages shall be debarred for a period of at least 2 years. Further, a substantial failure to provide notice may result in a one-year debarment. Additionally, an H-1B dependent employer’s failure to make a displacement inquiry may result in one-year debarment. Last but not the least, an H-1B employer’s ignorance of the INA’s requirements or contention that non-compliance was due to an attorney, or an employee will not excuse non-compliance.
 
The prospect for debarment for an H-1B employer is scary. Debarment is a very strong deterrent from non-compliance since debarment strikes at the very heart of an H-1B employer’s livelihood. H-1B employees are necessary to generate the income that allows “body shops” to exist.
 
For more information about the H-1B nonimmigrant work visa process or to consider H-1B nonimmigrant work visa options, the immigration and nationality lawyers and attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. invite you to visit them on the web at www.visaserve.com or to email them at [email protected] or to call the firm at 201.670.0006 (x104).
 

By:
​David H. Nachman, Esq.
Ludka Zimovcak, Esq.
Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C.

Employers who seek to hire an H-1B nonimmigrant in a specialty occupation must first make a filing with the Department of Labor (DOL) and obtain a Labor Condition Application (LCA). The LCA, among other things, must specify the number of workers sought, the occupational classification in which the H-1B will be employed, and the wage rate and conditions under which the proposed H-1B nonimmigrant will be employed. Additionally, the employer must attest that it is offering, and will continue to offer, during the period of H-1B employment, the greater of: (1) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment position in question; OR (2) the prevailing wage level for the occupational classification in the intended area of employment.
 
If required to pay the prevailing wage, the wage must be 100% of the prevailing wage. The prevailing wage is determined for the occupational classification in the area of intended employment and must be determined as of the time of the filing of the LCA. The regulations require that the prevailing wage be based upon the best information available. An employer that fails to pay wages as required is liable for back wages equal to the difference between the amount that should have been paid and the amount that was actually paid.
 
The prevailing wage could be determined by a Collective Bargaining Agreement (CBA) if one exists that pertains to the occupation at the place of intended employment. If the job offer is for an occupation not covered by a CBA and the employer does not choose to provide a survey or request the use of a current wage determination in the area, the wage component of the Bureau of Labor Statistics (BLS), Occupational Employment Statistics (OES) survey should be used to determine the prevailing wage rate for the prevailing wage in connection with an employer's job offer.
 
Although employers are not required to keep and maintain position descriptions, the regulations do require an employer to keep and maintain a copy of the documentation the employer used to establish the 'prevailing wage' for the occupation for which the H-1B nonimmigrant is sought or the underlying individual wage data relied upon to determine the prevailing wage. This information may have to be made available to the public (if requested) or it may have to be made available to the DOL upon request or in connection with an enforcement action.
 
The Federal regulations governing the H-1B nonimmigrant visa require the Administrator, Wage and Hour Division (WHD), to determine whether an employer has the proper documentation to support its wage attestation. Where the documentation is nonexistent or insufficient to determine the prevailing wage, or where the employer has been unable to demonstrate that the prevailing wage determined by an alternate wage source is in accordance with the regulatory criteria, the Administrator may contact the Employment and Training Administration (ETA), a part of DOL, to get the prevailing wage.
 
Once the ETA provides the prevailing wage, the Administrator is bound to use this determination as the basis for determining violations and for computing back wages, if such wages are found to be owed by an H-1B employer. It is important to highlight that the regulation is permissive, and the ETA's determination is merely an option that the Administrator can use in its investigation(s). This option is rarely used by Administrators during investigations. If the employer fails to support, through proper documentation, how it arrived at the prevailing wage level, the Administrator can use the employer's Letter of Support and Form I-129 submitted to the United States and Citizenship Services (USCIS) in connection with the H-1B petition to determine whether the employee was appropriately classified at the specific wage level. Thus, the alternative of not keeping documents used in the determination of appropriate wage level is to maintain the compatibility between the LCA and H-1B petition.
 
The nature of the job offer, the area of intended employment, and job duties for workers that are similarly employed are the relevant factors that are to be used in determining a prevailing wage rate. In determining the nature of the job offer, the first thing to consider is the requirements of the employer's job offer. “Area of intended employment” means the area within normal commuting distance of the place (address) of intended employment. The regulations define “similarly employed” as substantially comparable jobs in the occupational category in the area of intended employment. The required work and education and/or experience for a job impact the determination of the prevailing wage level.
 
ETA provides guidance for determining the proper wage level for a position. Level I wage rates are assigned to job offers for beginning or entry-level employees who have only a basic level of understanding of the occupation. Level I employees perform routine tasks that often require limited exercise of judgment. The guidance states that Level II wage rates are assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the occupation. They perform moderately complex tasks that require limited judgment.
 
Level III wage rates are assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge. Frequently, key words in the job title can be used as indicators that an employer's job offer is for an experienced worker. Words such as 'lead' (lead analyst), 'senior' (senior programmer), or 'head' (head nurse) would be indicators that a Level III wage should be considered. The Level IV wage level applies to highly-competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques. Level IV employees generally hold management and/or supervisory roles and responsibilities.
 
To better understand how the wage levels apply, consider an example of a job position that requires either two years or more of experience or a Masters' degree or higher. Taking into consideration the above-mentioned guidelines, the employer should use either a Level II or higher prevailing wage rate. It is important to mention that if an entry level job has additional requirements or duties beyond that of those ordinarily required; the employer should refrain from using a Level I prevailing wage.
 
To summarize, an employer hiring an H-1B worker is required to pay the higher of the actual wage or the prevailing wage. If paying the prevailing wage, the wage must be 100% of the prevailing wage. Further, the determination of the prevailing wage depends upon whether the occupation is covered by CBA or not. If the job offer is for an occupation not covered by a CBA and the employer does not choose to provide a survey or request use of a current wage determination in the area, the wage component of the OES survey should be used to determine the prevailing wage.
 
The employer is required to keep a copy of the documents used to determine the appropriate wage level. If the employer fails to provide such documents, the WHD Administrator may either contact the ETA to get the prevailing wage for the offered position OR refer to the Letter of Support and/or I-129 Forms submitted to the USCIS with the H-1B petition to make a determination. Thus, the alternative of not keeping documents used in the determination of appropriate wage level is to maintain the compatibility between the LCA and the H-1B petition.
 
In conclusion, a prospective H-1B employer should exercise caution in offering a wage to prospective H-1B employee that should be the greater of either the actual or prevailing wage. If paying prevailing wage, the employer should take into consideration the nature of the job offer, the area of intended employment, and jobs duties for the proffered position in selecting the appropriate OES wage level, or else they may find themselves facing WHD challenges with regard to paying back wages.
 
For more information about the H-1B nonimmigrant work visa process or to consider H-1B nonimmigrant work visa options, the immigration and nationality lawyers and attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. invite you to visit them on the web at www.visaserve.com or to email them at [email protected] or to call the firm at 201.670.0006 (x104).
 

By:
​David H. Nachman, Esq.
Ludka Zimovcak, Esq.
Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C.

U.S. Citizenship and Immigration Services on Dec 6, 2019, announced a requirement for employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register and pay the associated $10.00 H-1B registration fee before filing a petition. USCIS will open an initial registration period for a minimum of 14 calendar days each fiscal year.
 
● During this initial registration period, prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition. 
 
● If a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes and no later than March 31, 2023. Prospective petitioners with selected registrations will be eligible to file a cap-subject petition only for the alien named in the registration.
 
USCIS will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary, and the appropriate fiscal year. Additionally, although petitioners can register multiple aliens during a single online submission, duplicate registrations for the same beneficiary in the same fiscal year will be discarded.
 
What does this mean for the immigration practitioners, professionals, and prospective H-1B employers and employees? To better prepare for the H-1B cap season, this article endeavors to summarize a few practice pointers that every prospective H-1B employer and employee needs to know.
 
Limited Numbers: Not 65,000; There Are Only 58,200 Regular H-1B Visas.
 
The current annual cap on the H-1B category is 65,000. However, all H-1B nonimmigrant visas are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the Nationals of Chile and Singapore. Unused numbers in the H-1B1 pool are made available for H-1B use for the next fiscal year. Thus, in effect, only 58,200 H-1B visas are granted each year with the exception of the 20,000 additional H-1B visas which are reserved for individuals who have received a master's or higher degrees from a U.S. college or university. In an upcoming article, we will discuss, in detail, whether or not every master’s degree from a U.S. academic institution qualifies an individual for the H-1B master’s cap.
 
Because of the limited number of H-1B visas, employers should identify individuals who would need H-1B sponsorship. This will allow sufficient time for petition preparation, including the time required to file and receive certification of the Labor Condition Application (LCA), Form ETA 9035. Thus, formulating a strategy for an H-1B petition is key to hiring an H-1B employee for the next USCIS fiscal year which begins on October 1st, 2023.
 
How Long Will USCIS Accept H-1B Petitions?
 
With the new H-1B Online registration period starting around early March, if a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes and no later than March 31, 2023. USCIS will provide guidance on how to use the registration system and prepare registrations before opening the registration system for the initial registration period.
 
Refrain From Submitting Multiple H-1B Registrations For the Same Employee.
 
An employer may not submit more than one H-1B registration for each prospective employee during the fiscal year. This limitation also precludes an employer from filing multiple petitions for different jobs for the same employee but does not preclude related employers (e.g., parent and subsidiary companies or affiliates) from filing petitions for the same beneficiary. However, the employer must demonstrate a legitimate business need to do so and, if it fails to meet that burden, all petitions on behalf of the beneficiary will be denied or revoked. 
 
Both the Proffered Position And the Prospective H-1B Employee Should Qualify.
 
Not only the prospective employee but also the proffered position should qualify for the H-1B visa. For a proffered position to qualify for an H-1B visa, it must be a job in a “specialty occupation”. “Specialty occupation” is an occupation that requires: (1) a theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. 
 
The H-1B regulations further require that a position also meet one or more of the following criteria in order to qualify as a specialty occupation: (1) a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; (2) the degree requirement is common to the industry in parallel positions among similar organizations; (3) the employer normally requires a degree or its equivalent for the position; (4) the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. 
 
Therefore, in order to qualify as a “specialty occupation,” a proffered position must: (1) require a theoretical and practical application of a body of highly-specialized knowledge; (2) require a bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation; and (3) meet at least one of the four criteria listed above. 
 
For a prospective employee to qualify for the proffered H-1B position, regulations specify that he/she should have one of the following: (1) full state licensure to practice in the occupation (if required); (2) completion of the degree required for the occupation; or (3) progressively responsible work experience in the specialty equivalent to the completion of such degree. Thus, a general degree absent specialized experience may be insufficient because there must be a showing of a degree in a specialized field.
 
The Filing Fee Depends Upon the Type And Size of H-1B Employer.
 
Initially, Employer will need to pay the H-1B registration fee in the amount of $10.00. Aside from the H-1B legal fee, the employer will also need to pay the USCIS filing fees. The amount of the H-1B filing fee depends on the size and type of employer. All employers are required to pay the base filing fee for the H-1B petition which is currently $460.00. Additionally, pursuant to the American Competitiveness and Workforce Improvement Act (ACWIA), employers are required to pay an additional fee (commonly referred as ACWIA fee) of $750.00 or $1,500.00 unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement.
 
A sponsoring employer is required to pay a fee of $750.00 if it employs 25 or fewer full-time equivalent employees. In all other cases, the employers need to pay $1500.00. Employers such as institutions of higher education; nonprofit organizations or entities related to or affiliated with an institution of higher education; nonprofit research organization or governmental research organization, etc. are exempt from paying the ACWIA fee. Additionally, employers seeking initial approval of an H-1B must pay a $500.00 Fraud Prevention and Detection fee as mandated by the H-1B Visa Reform Act of 2004.
 
Additionally, as a result of the FY2020 Omnibus Appropriations Bill passed on December 18th, 2015, the supplemental fee for H-1B petitions are increasing for companies that employ 50 or more employees in the United States and have more than 50 percent of their U.S. workforce in H-1B, L-1A, or L-1B nonimmigrant status. Specifically, the previously expired fees H-1B petitions will increase from $4,000. These supplemental fees must be paid on initial and extension petitions. Further, either the employer or employee can pay an optional premium processing fee of $2,500.00 to expedite the adjudication of a petition.
 
Be Aware of Salary and Benching Costs.
 
A prospective employer must obtain an approved Labor Condition Application (LCA) from the U.S. Department of Labor (DOL). The employer attests on the LCA that the H-1B nonimmigrant worker will be paid wages which are at least the higher of the actual wage 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 occupational classification in the area of intended employment. Thus, not to undercut wages paid to the comparable U.S. workers, Congress has included a safeguard in the H-1B program. Additionally, and in some cases the employers are required to pay the costs for the petition process. The wage offered to the prospective H-1B nonimmigrant may drive whether or not the employer is or is not required to pay for the H-1B visa process.
 
Regulations require that employers must begin paying LCA-stated wages when the employee “makes him/herself available for work” but not later than 30 days after employee’s entry into the United States (if the prospective H-1B employee is outside the U.S.) or 60 days from the date that USCIS grants a Change of Status (if the prospective H-1B nonimmigrant is inside the U.S.). Liability begins to accrue when the person “enters into employment” with the employer. Thus, even if the worker has not yet “entered into employment,” when the H-1B worker is present in the U.S. on the date of the approval of the H-1B petition, the employer is required technically to pay to the worker the required wage beginning 60 days after the date the H-1B worker becomes eligible to work for the sponsoring employer. The H-1B worker becomes “eligible to work” for the employer on the date set forth in the approved H-1B petition filed by the employer.
 
An employer must continue to pay an H-1B employee who is not working due to a nonproductive status at the direction of the employer (e.g., this is referred to as “benching” because of lack of work, lack of a permit or license). This regulation applies even if the H-1B employee is receiving training (either provided by the employer or through some other external arrangement at the direction of the employer). Thus, the employer is liable for both nonproductive time as well as productive time once the employee becomes eligible for work. Employers who do not pay non-terminated H-1B employees may face civil penalties. Employers are generally advised to pay an H- 1B employee his or her salary as listed on the LCA until that employee has been terminated and the USCIS has been notified of the request to withdraw the H-1B Petition. Furthermore, if the H-1B employee is terminated prior to the end of the period of admission, the employer should withdraw the H-1B and may be liable for “the reasonable costs of return transportation” to return the foreign national home.
 
Compliance Issues: Posting Notice of the LCA & Maintaining Public Access Files.
 
Notice of the LCA must be posted, or where there is a union it must be given to the union, before filing the LCA. The notice may be the LCA itself or a document of sufficient size and visibility that indicates: (1) that H-1Bs are sought; (2) the number of H-1Bs; (3) the occupational classification; (4) the wages offered; (5) the period of employment; (6) the location(s) at which the H-1Bs will be employed; and (7) that the LCA is available for public inspection. The notice should state where complaints may be filed. Notice must be posted at two conspicuous locations at place of employment where any H-1B nonimmigrant will be employed and the notice shall be posted on or within 30 days before the date the LCA is filed with the U.S. DOL and shall remain posted for a total of 10 days.
 
Notice may be posted in areas where wage and hour and OSHA notices are posted. An employer may also provide electronic notice to employees in the “occupational classification” for which H-1Bs are sought, through any means it normally uses to communicate with employees including a home page, electronic bulletin board or e-mail. If accomplished through e-mail it needs only to be sent once; other electronic forms (e.g., home page) should be “posted” for 10 days. Notices must be posted at each worksite including ones not originally contemplated at the time of filing but which are within the area of intended employment (same MSA- Mean Statistical Area) listed on the LCA.
 
Additionally, an employer must maintain a group of documents referred to as a Public Access File (PAF). The PAF must be accessible to interested and aggrieved parties. The PAF must be available at either the employer’s principal place of business or at the worksite. An interested party is one that has “notified the DOL of his or her/its interest or concern in the administrator’s determination.”
 
The PAF must be available within one day after the LCA is filed with all supporting documentation including: a copy of the completed LCA; documentation which provides the wage rate to be paid; a full, clear explanation of the system used to set the “actual wage”; a copy of the documentation used to establish the prevailing wage; copy of the notice given to the union/employees; and a summary of the benefits offered to U.S. workers in the same occupational classification, and if there are differences, a statement as to how differentiation in benefits is made (without divulging proprietary information).
 
Demonstrate Sufficient Level of “Control” Over Prospective H-1B Employee(s).
 
In order for the H-1B petition to be approved by USCIS, a petitioning employer must establish that an employer-employee relationship exists and will continue to exist throughout the duration of the requested H-1B validity period. Hiring a person to work in the United States requires more than merely paying the wage or placing that person on the payroll of the H-1B petitioning organization. In considering whether or not there is a valid “employer-employee relationship” for the purposes of H-1B petition adjudication, USCIS must determine if the employer exercises a sufficient level of “control” over the H-1B employee.
 
Thus, the prospective H-1B petitioner organization must be able to establish that it has the “right to control” when, where, and how the prospective H-1B nonimmigrant beneficiary will perform the professional and specialty occupation job. USCIS considers various factors in making such a determination (with no one particular factor being decisive).
 
For more information about the H-1B nonimmigrant work visa process or to consider H-1B nonimmigrant work visa options, the immigration and nationality lawyers and attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. invite you to visit them on the web at www.visaserve.com or to email them at [email protected] or to call the firm at 201.670.0006 (x104).