Robert G. Werner

H-1B Alternatives

There is a variety of reasons why an employer might seek an alternative working visa to the H-1B:

Complementary Roles of the H-1B Employee, Sponsor, and Attorney

The prospective H-1B employee and her sponsoring employer have complementary roles in the H-1B process, and it behooves both parties to cooperate knowledgeably and harmoniously to effect their shared goal of enabling the candidate to accept the proposed employment. The attorney is primarily the liaison and facilitator in the employer’s interactions with US Citizenship and Immigration Services. But because of the closely coupled interests of the employee and employer in this project, the attorney generally represents the employee as well as the employer, within stipulated limits. The interlocking roles of these three actors are described in turn in this chapter.

Overview of the H-1B Petition Procedure

The H-1B petition can be prepared as soon as the prospective employee has accepted a job offer.

Eligibility for H-1B Status

The H-1B application process should begin with an analysis of H-1B eligibility to determine the chances of success, the resources that will be needed in preparing the case, and whether it is worth it to proceed at all.

Specific Vocational Preparation

Specific Vocational Preparation is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.

Labor Condition Application (LCA) Compliance

On its surface, the Labor Condition Application (LCA) process appears to be simple: it is meant to ensure that the employer pays a salary and benefits that are high enough that they do not undercut the salaries and benefits of American professionals generally or of other employees of your company.

Termination of H-1B Employment

No job lasts forever. There are many reasons why employees may leave their H-1B employment, and many reasons why they may be forced to leave.

The H-1B Annual Quota

Congress imposes an annual quota on H-1B visas, which it varies over time. The quota raises critical issues of timing for new H-1B petitions and of eligibility for eight distinct quota exemptions. These issues of timing and eligibility must be weighed jointly and carefully by employees and employers.

Maintaining H-1B Status

Both employer and employee have a strong interest in maintaining the employee in legal H-1B status. But the employee and his family have more on the line personally. The H-1B employee has made a major life decision in deciding to leave his home country to work and live in the US. The consequences to the worker and his family of falling out of legal status can be severe and sometimes catastrophic on a personal level. For that reason, we urge all H-1B workers to take a personal interest in maintaining their legal status and not simply rely on the employer or the employer’s attorney to take care of everything.

H-1B Investigations and Penalties

Audits and investigations to ensure the integrity of the H-1B program are conducted (1) by the Wage and Hour Division (WHD) of the Department of Labor (to ensure compliance with the Labor Condition Application regulations) and (2) by the Fraud Detection and National Security (FDNS) unit of USCIS (to prevent fraud in the H-1B petition process). Other agencies such as Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) can also become involved. Of these two types of H-1B investigation, by far the more difficult and potentially dangerous for the employer is the LCA audit by the DOL’s Wage and Hour Division.