What are the H1B Visa Sponsor Requirements?

Any US employer wishing to take advantage of the H1B visa to hire employees must fulfil a number of H1B visa sponsor requirements.

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Compliant recruitment process

The H1B visa is a temporary, non-immigrant worker visa which allows US businesses and organisations to employ graduate level or otherwise specialist foreign nationals in speciality occupations.

‘Speciality occupations’ are defined as those which require theoretical and practical application of highly specialized knowledge, such as in the fields of engineering, computing or medicine.

Before entering into the H1B process, the employer must first ensure that no US workers will be displaced should an H1B worker be recruited for the role in question.

The employer must show that they have attempted in good faith to recruit US workers for the job while offering the prevailing wage.

A record of this recruitment activity must be kept and made available to the Department of Labor to evidence compliance.

The employer must also present a statement that hiring the H1B worker for the job will not displace a US worker within 90 days before and after filing the H1B petition.

Ensure the role is eligible for the H1B program

The employer must check that any role they seek to fill through the H1B visa is eligible for the program. For a job to be eligible, it must require an individual with a bachelor’s or higher degree, or equivalent qualification, knowledge and expertise.

If the job does not meet this condition, the H1B petition will be rejected.

Ensure the pay level or salary meets the prevailing wage

The employer must ensure the pay level or salary to be paid for the H1B role meets the prevailing wage set by the Department of Labor.

Factors involved in deciding on the prevailing wage for a job include the duties of the role, the nature of the job offer and the area of intended employment.

The employer must demonstrate that they will pay the employee a wage that is not less than the wage paid to similarly qualified workers.

Where they intend to pay more than the wage paid to similarly qualified workers, they must demonstrate that they will pay the employee a wage that is generally accepted as the norm for the job locally.

Pay the relevant H1B fees

There a number of fees involved with an H1B application.

While the employee will be required to pay for their visa application and those of any dependants, the responsibility for paying for the H1B petition fees lies with the employer. As at the time of writing, the petition fees are:

 

H1B fee Amount (US $) Who pays?
Registration Fee $10 Employer
Basic visa filing fee (I-129 form) $460 Employer
Public Law 114-113 Fee $4000 Employer
Premium Processing (optional) $2,500 Employer or employee
USCIS Anti-Fraud Fee $500 Employer
ACWIA Education and Training Fee
$750 if fewer than 25 employees
$1500 if more than 25 employees
Employer

 

The fee relating to Public Law 114-113 should only be paid by companies who have over 50 employees and where over half of those are employed through the H1B or L1 visa path.

It is not necessary to pay the Fraud prevention and detection fee if the H1B petition is for a Chile or Singapore Free Trade Agreement worker.

The optional premium processing fee may be paid by either the employer or the employee.

The following organisations are exempt from paying the ACWIA fee:

  • Higher education institutions
  • Non profit entity related to or affiliated with higher education institution
  • Non profit research organisation
  • Governmental organisation
  • Primary educational institution
  • Secondary educational institution
  • Non profit entity engaging in curriculum related clinical training programmes for students

Applicant eligibility

The employer must ensure that all of their H1B applicants are eligible for the program. For a worker to be eligible, they must meet at least one of the following requirements:

  • Have completed a US bachelor’s or higher degree in the related speciality occupation from an accredited educational institution, or hold an equivalent foreign degree
  • Have an unrestricted state licence, registration or certification which allows them to perform and be employed in the speciality occupation, in the state where the employment is located
  • Have the education, training or experience in the speciality equivalent to a degree and be recognised as having a suitable level of expertise in the speciality

Any applicant who is deemed by USCIS and immigration officials to not meet these requirements will be denied an H1B visa.

Labor Condition Application (LCA)

Before an H1B application can be made, the employer must be granted a Labor Condition Application by the Department of Labour. This states the employer’s agreement to carry out the following:

  • to pay the employee a wage that is not less than the wage paid to similarly qualified workers, or if more, to pay the employee a wage generally accepted for such a position locally
  • to provide the employee with working conditions that will not have a negative or detrimental effect on similarly employed workers

The employer must at this point confirm that no strikes, lockouts or other work stoppages are in place, and if any of these should occur after the initial filing of the LCA the employer must notify the Department of Labour.

The employer must inform their existing employees that the LCA has been submitted. A notification must be posted at two separate locations at the business’ premises for a minimum of 10 days.

Employers are legally required to keep a public access file to demonstrate the above compliance, which must be made available for public inspection.

H1B application process

Once the LCA has been granted, the employer should submit a Non-immigrant Worker Petition (form I-129) along with the certified LCA form to the relevant USCIS Service Centre.

Should the petition be approved, the employee may apply for their visa through the Online Non-immigrant Visa Application system (form DS-160) and attend an interview at their local US Embassy or Consulate.

H1B visa cap

The H1B visa cap limits the maximum number of H1B visas that are made available during each year. The regular cap for 2019 was 65,000. An additional 20,000 visas were made available to applicants holding a Masters degree. This is called the Masters cap.

The number of petitions submitted each year vastly outnumbers the H1B visas made available. It is therefore important that any petitioning employer ensures their application is correct and complete and meets all of the sponsor requirements under the H1B visa.

Petitions from the following organisations are exempt from the H1B visa cap:

  • higher education institution
  • non profit organisation that is associated with a higher education institution
  • non profit research
  • government organisation

Should an H1B petition be made by one of the above organisations, it will not be entered into the H1B visa cap, but it will still be required to meet all eligibility requirements.

Do you need advice on H1B visa? NNU can help!

Take specialist legal advice to ensure that all stages of your H1B petition process are dealt with correctly, from compiling information to communicating with the relevant authorities, so that your application has the best chance possible of a successful outcome.

NNU Immigration are dedicated US immigration attorneys. We can guide you through the H1B application process, including advice on sponsor requirements. For advice about an H1B application, contact us.

This article does not constitute direct legal advice and is for informational purposes only.