What Employers Need To Know Before Hiring Foreign Workers

As an employer you have options in how to employ foreign employees. First, you have to identify what your needs are: whether you have a temporary need for a foreign worker or permanent need. Second, whether the position requires an advanced degree or does not require any special education or training. Depending upon your business needs there are several types of employment visas you can use to hire a foreign worker.

An H-1B visa is a non-immigrant visa classification for a professional worker in a specialty occupation. “Specialty occupation” means that the prospective foreign employee will fill a position that requires use of highly specialized knowledge and at least a bachelor or higher degree as minimum qualifications.

You as an employer have to follow government regulations during the process of obtaining an H-1B visa for your employee. Employers must be able to pay a salary to the foreign employee that is 95% of the prevailing wage in this occupation for that particular combination of education and experience. Employers also must file a Labor Condition Application (LCA) on behalf of the foreign employee and post the application at the time of filing at the principal place of employment in two conspicuous locations for ten business days. Another responsibility that an employer has is to open a public inspection file for an H-1B employee that proves that the employer complied with all the attestations on the LCA. The H-1B nonimmigrant category is a temporary visa classification that is initially valid for three years.

Employers must also as part of the LCA, assert that there is no strike or lockout at the work site and that other employees are notified about the filing of the LCA. If the company is unionized, the bargaining representative should be informed about the filing of the LCA.

After the Department of Labor approves the LCA, the employer must file a petition for the alien worker with the INS Service Center that has jurisdiction over your state. Employers must also submit proof that the position is in a “specialty occupation” and that the employee has at minimum a bachelor’s degree, or a combination of education and experience required for that position. The INS Service Center normally takes about 60 to 120 business days to adjudicate the H-1B petition. Only after the petition is approved may the H-1B worker take the approval notice with all the supporting documentation to a U.S. consulate to obtain an H-1B visa to enter the United States.

The employer has to follow the same process again if the employee will work at an additional work site not listed on the original LCA: A new posting; a new prevailing wage determination; and a new LCA filing. Any material changes in employment must be approved by the INS through an amended petition.

The public inspection file must include: a copy of the LCA signed by the employer’s representative; documentation regarding current rate of pay for H-1B employees; a copy of prevailing wage determination; a memorandum with the calculation of the actual wage; and evidence that a copy of LCA was given to H-1B the worker on or before the first day of employment.

The public inspection file must be made available within one business day. The Department of Labor may investigate the employer’s conduct based on a complaint or its own initiative. If the employer violated the terms of the LCA, the employer may be fined up to $ 1,000.00.

After the petition for alien worker is approved, employers still have an obligation to pay for return transportation for the worker if employment was terminated prior to the expiration of H-1B. The initial period of H-1B visa is three years, which can be extended for another three years. Upon a proper showing, the position may be certified permanent, and at that point employee may be eligible for permanent residency status. Anastassia V. Bukingolts

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