The H-1B visa classification is a commonly used classification for professional workers. More information about the H-1B can be found here. An H-1B petition must be filed by a US employer on behalf of its (prospective) employee, who will work for that company in a position that requires a minimum of a bachelor’s degree in a specific field of study. That is, the individual employee cannot file an H-1B petition on her own; rather the employer must file the petition. But what does it mean exactly to “sponsor” an H-1B petition?
H-1B Employer Attestations
Before an employer files an H-1B petition with USCIS, they must file a labor condition application (LCA) and have it certified by the Department of Labor (if an employer hires an attorney to assist in the H-1B filing, the attorney usually also assists with the LCA). By submitting the LCA, the employer attests that:
- The H-1B employee will be paid the prevailing wage or actual wage, whichever is higher;
- The working conditions provided for the H-1B employee will not adversely affect the working conditions of similarly employed workers;
- There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment;
- The employer will provide notice of filing the LCA to the collective bargaining representative if any, or to similarly employed workers (by providing electronic notice or posting notice at the place of employment).
Again, if the employer choses to hire an immigration attorney, the attorney typically provides the employer with detailed instructions and full explanations so the employer fully understands exactly what is required to meet each of the conditions listed above.
What Else Does the Employer Have to Do?
- Fees: By regulations, the employer must pay certain fees associated with the H-1B filing. Please see this post for more information on who must pay which fees.
- Logistics: If an employer hires an immigration attorney to assist with the filing, the attorney typically drafts the forms for the filing and assists with the assembly of other required documentation. However, the employer still must provide information about the company so that the forms can be completed, and detailed information about the H-1B position. The employer must also carefully review all forms and documentation and sign the forms.
What Does the Employer Not Have to Do?
- Filing an H-1B petition for a foreign national employee does not change the employment relationship. That is, if the employer choses to terminate the H-1B employee at any point, as long as the termination is in accordance with the relevant state’s employment laws, termination is permissible, even before the end of the H-1B validity period. In such case, the employer can be liable for the reasonable cost of return transportation to the foreign national’s last country of residence (this only applies if the employer terminates the employee before the end of the H-1B validity period; it does not apply if the employee resigns). The employer must also notify USCIS that the employee has been terminated.
- Likewise, filing an H-1B petition for an employee does not obligate that employer to support the employee’s permanent residence (green card) process, although that is an option if desired.
The decision to “sponsor” an H-1B employee is not a decision to take lightly. However, careful planning and a clear understanding of the requirements and obligation can allow an employer to successfully hire a needed foreign national employee while also staying in full H-1B compliance. Immigration attorney Emily Sumner provides guidance and assistance to H-1B employers and employees alike. Please contact our office at email@example.com or 804-396-3412 if we can be of assistance.