Questions that Employers Frequently Ask about H-1B Visas

• How can I determine whether a position at my company qualifies for an H-1B Visa?
  
• What are the employers obligations in an H-1B visa?
• An H-1B employee took advantage of the portability provisions to switch to our company from another company.  How do I fulfill the I-9 verification requirement?
• What is required to continue the H-1B employment for my company in corporate restructuring situations?

How can I determine whether a position at my company qualifies for an H-1B Visa?

To qualify for H-1B, the position must involve applying highly specialized knowledge, such that a bachelor's or higher degree in a particular specialty is a minimum requirement for entry into the occupation. 

The position would qualify if the normal minimum requirement for entry is a bachelor's degree or its equivalent.  You can demonstrate that other employees in the same position in your company and industry hold at least a bachelor's degree.  Even if the occupation generally does not require a bachelor's degree for entry, the particular position at your company may qualify if the job is so complex or unique that only a person with a degree can perform the necessary duties.

Positions that are traditionally considered professional positions would most likely qualify as a specialty occupation. They include positions such as architects, engineers, lawyers, physicians, and teachers.  The Immigration Service has indicated that accountants, computer professionals, social workers, medical technologists, dietitians, economists, mechanical engineers, and librarians may also qualify as specialty occupations.

What are the employer's obligations in an H-1B visa?

An employer has the following obligations when hiring an H-1B worker. 

• Must maintain a public inspection file containing the Labor Condition Application (LCA), the current rate of pay, an explanation of how wages are determined, the prevailing wage source and methodology, and evidence of the notification requirement;
• Must continue to pay the H-1B worker the required wage rate throughout the period of validity of the LCA;
• Must notify the DOL , within the three days, of the commencement of a strike or a lockout at the same place of employment as the H-1B worker;
• If an H-1B worker travels to another location within the same area listed in the original LCA, the employer must provide notice to a bargaining representative or post two notices at the work site.  For sites outside of the listed location, the employer must file a new LCA, meet the prevailing wage requirement and post two notices.
• If the H-1B employee is terminated before the end of the visa term, the employer is responsible for paying the return cost of transportation for the H-1B worker.

An H-1B employee took advantage of the portability provisions to switch to our company from another company.  How do I fulfill the I-9 verification requirement?

There is no specific place on the I-9 form to document this situation, and no regulations have addressed this issue.  However, this circumstance is similar to the 240-day grace period, authorizing employment with the same employer for up to 240 days after an extension petition is filed.  In both circumstances, the employment is authorized. The employer should provide information in the I-9 form to demonstrate that an H-1B petition was filed to change employers, and the I-9 form should be updated with the approval information once received.

What is required to continue the H-1B employment for my company in corporate restructuring situations?

An amended H-1B petition is generally not required where a new corporate entity succeeds to the interests and obligations of the original employer, and where the terms and conditions of employment remain the same.  Companies are required to file a sworn statement in the H-1B files regarding the change in corporate structure.