Getting qualified foreign workers to your company can be a boom to your business, but there are mistakes that sponsoring employees make that can jeopardize their workers' H-1B status and possibly result in penalties to you or debar you from filing subsequent petitions. Here are some top visa mistakes that employers make when applying for H-1B visas:
1. Providing Insufficient Job Description
You have to demonstrate that the position to be filled is a specialty occupation, or one that requires the employee to possess a bachelor's degree or advanced degree, or its equivalent, in a specific field. The USCIS will look at the specific job duties to be performed as well as the your business operations to see if it qualifies.
2. Wrong or Incomplete Filing Fees
If the H-1B petition is for a new cap-subject H-1B, then you will need to submit three filing fees:
- USCIS filing fee of $325
- ACWIA (American Competitiveness and Workforce Improvement Act) fee of $750 if you have 1-25 full time employees; and $1500 if there are more than 25 (This fee is waived if you are nonprofit or a qualifying educational institution)
- Fraud prevention and detection fee of $500
You will have to pay a separate fee of $2,000 if you have 50 or more employees and 50% of them are in H-1B or L-1 status. Be sure each fee is paid separately.
3. Filing Incomplete LCA or Failing to File on Time
Before filing an H-1B petition, the employer must file an LCA (Labor Condition Application) with the Department of Labor. Employers have to file a new LCA whenever there is a change in the employee's pay, job site or duties. Failure to file one can result in the employee being engaged in unauthorized employment and jeopardize their status. The LCA must be filed no earlier than 6 months before the start date of the employee's intended employment as shown on the LCA.
4. Failure to Pay Required Wages
As an employer, you are obligated to pay the foreign worker the same or higher pay than the prevailing wage rate and pay for nonproductive time and offer benefits on the same basis as offered to American workers. You may not deduct business expenses from the workers' wages. Further, you must pay the worker no later than 30 days after the employee enters the US with an H-1B visa or 60 days after the H-1B validity date if the employee is already in the US on H-1B status. If there is no available work for the employee, who is considered "benched", you still must pay the worker the full hours specified on the H-1B petition.
5. Failing to Maintain Required Documentation
Some of the required documentation includes:
- Post-employment changes along with filing a new LCA
- The LCA has to be posted in two conspicuous locations at your office or work site and you must provide proof of posting
- Should your business organization change, such as to a corporation or partnership, it must be documented as well
- Records of the employee's acknowledgement of receipt of the LCA
- Maintain your public access file at your principal place of business or at the employee's worksite and for one year after the employee's termination.
6. Failing to Conduct H-1B/LCA Internal Audit
To confirm that you have complied with all documentary requirements and to avoid problems with an USCIS audit, have an immigration attorney review your procedures, files and documents and visit your office and employee's worksite. This will enable you to minimize liability if errors are found by indicating a good faith effort on your part to comply.
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Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.
