Top Five Things the H-1B Employer and Employee Must Know

  1. Numerical limit/annual cap: There is an annual cap of 65,000 H-1Bs available every year, plus an additional 20,000 H-1Bs for US master’s degree holders. US Citizenship and Immigration Service’s (USCIS) fiscal year begins October 1. Therefore this is technically the first day that new H-1B employees can begin work. An H-1B petition may be filed up to 180 days in advance of the start date, which is April 1st. Therefore an employer may file a new H-1B petition for the upcoming new fiscal year on April 1st of any given year, for a work start date (for the H-1B employee) of October 1st. H-1B transfers and extensions, and certain cap exempt petitions are exempt from the annual H-1B cap.
  2. Duration of H-1B status: The H-1B status is initially valid for a period of up to three years, and can be extended for up to six years total. Further, the H-1B status can be extended past the sixth year in two circumstances, pursuant to AC21:
    1. If the H-1B employee is the beneficiary of a labor certification or I-140 petition that was filed at least 365 days in advance of the end of the sixth year of H-1B status, the H-1B status can be extended past the sixth year in one year increments.
    2. If the H-1B employee is the beneficiary of an approved I-140 petition (regardless of when it was filed), the H-1B status can be extended past the sixth year in three year increments.
  3. Required employer attestations: The US Department of Labor has put into place certain mechanisms to ensure that the employment of foreign workers in H-1B status does not adversely affect the wages or working conditions of US workers. These requirements include:
    1. The employer must ensure that the H-1B worker is paid either the prevailing wage or the actual wage, whichever is higher. The prevailing wage is determined by the Department of Labor and is occupation-specific, and is based on the geographic location of the position. The actual wage is the wage the employer pays similarly employed workers.
    2. The employer must also file a labor condition application (LCA) with the Department of Labor. The employer makes certain attestations by signing the LCA, including that they will pay the H-1B employee the prevailing wage rate, that working conditions of position will not adversely affect conditions of similarly employed US workers; that the worksite is not experiencing labor disputes including a strike or lockout, and that the H-1B employee will be offered the same or comparable benefits as those offered to similarly employed workers.
  4. Some organizations are cap-exempt: That is, some organizations may file H-1B petitions that are not counted against the H-1B cap. This includes institutions of higher education; non-profit organizations related or affiliated with an institution of higher education; and non-profit research organizations or governmental research. If you have a question about whether your organization is cap-exempt, please contact us at info@sumnerimmigration.com.
  5. Employee-Employer relationship: In the past couple of years, USCIS has put tremendous emphasis on making sure the H-1B petitioner can demonstrate the employer-employee relationship (between the H-1B petitioner and the H-1B beneficiary). The employer must be sure to document that it has full control over the employment of the beneficiary, even if the beneficiary will work offsite, such as at a client site. For a more detailed discussion of this topic, please see http://goo.gl/6MDII.

Have a question about an H-1B filing? Contact Attorney Emily Sumner at esumner@sumnerimmigration.com today! Emily is an immigration attorney practicing in Richmond, Virginia, with clients around the country, and the globe.

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