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H-1B Visa: Things a U.S. Employer Needs to Know

By March 12, 2021May 20th, 2021H-1B and E-3 Visa, Immigration

H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations.  This visa category requires that the beneficiary (the foreign worker) have a bachelor’s degree, and the petitioner (the U.S. company) can employ the worker for up to six years.

Many H-1B employers are often not sure if they are eligible to sponsor a foreign worker for an H-1B visa and they are also not sure what their obligations are to comply with immigration law. This blog post will answer some common questions U.S. employers have.

Our company is very small. Can we sponsor an employee for an H-1B visa?

Yes. Many people think that the H-1B sponsoring company must be a large U.S. company with hundreds of employees, but that is not correct. The size of the company is not relevant for an H-1B visa, and even small companies that don’t employ any foreign workers can sponsor a foreign national for an H-1B visa. Additionally, even a sole proprietorship or partnership can sponsor an H-1B company if it has an IRS Tax Identification Number.

Does the employer have to pay all the legal & filing fees?

Yes, generally, the H-1B employer has to pay all H-1B legal and filing fees and cannot require that an employee pay for or reimburse the employer for the fees associated with an H-1B Visa. There are 2 exceptions: (i) the employee can pay the USCIS Premium Processing fee (this fee is not mandatory and means that USCIS will make a decision on the petition within 15 calendar days), (ii) the employee can pay the fees for his/her dependents.

Do I have to show that the company cannot find a U.S. worker for the position?

No, this is not required for an H-1B visa.

What wage do I have to pay to the employee?

You will have to pay the H-1B employee the higher of either the actual or prevailing wage (this is called the “required wage”). Please see our blog post on this topic when you click here. The wage varies depending on the job & area where the employee will be employed.

Can I employ the worker part-time?

Yes. Part-time employment is allowed on an H-1B visa. However, if you first employed the worker full-time, and you now want to switch the worker to part-time, a new LCA will have to be filed as well as an amended H-1B petition.

What is the H-1B process? What is the H-1B lottery?

The H-1B process can be explained as follows:

  1. You/your attorney will have to file an H-1B registration for each H-1B employee you want to sponsor in an H-1B lottery (the lottery is usually open for 2 weeks in March). USCIS then runs the H-1B lottery and will notify the companies whose registrations were selected.
  2. If your H-1B registration is selected in the lottery, you/your attorney will file an H-1B petition with USCIS.

Please see more details on the H-1B process when you click here.

Are there any additional obligations I should know about?

H-1B employers who employ H-1B workers have to keep what is called a Public Access File. The file should be kept at either the employer’s principal place of business or at the place of H-1B employee’s employment. There are strict requirements as to what has to be kept in the Public Access file and you can find the list of required documents when you click here.

Additionally, if the H-1B employment ends prior to the expected end date, the employer must send a letter to USCIS explaining that the employee no longer works for the company and withdraw the Labor Condition Application filed with the Department of Labor. If the employer terminates the employee, the employer is required to pay for the employee’s “reasonable costs” of return transportation to their last country of residence. To meet this requirement the employer can offer to directly purchase a plane ticket or offer a cash payment.

Please click here to read our blog post on the H-1B employer’s obligations.

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