Hiring An H1B Worker Who Is Already In The US under The Same Status

Hiring an H-1B worker whether on transfer/new or concurrent can be crucial for employers. They have to go through some essential steps to be able to hire such employees. 

For hiring a new H-1B worker who is already in the U.S. under the same status, he/she must have been selected in the lottery process to be eligible. H1B visa holders can change their employer while in the US under a process which is known as the H1B transfer. On the other hand, An H1B petition filed on behalf of a foreign national working in the U.S. under an H1B, seeking authorization to allow him to be employed in another job concurrent with his current H1B employment, is commonly referred to as “Concurrent H1B.” One can begin working with his/her second employer as soon as the new H1B petition is filed and received by the USCIS. This means that the H-1B transfer rules apply where one doesn’t have to secure approval before working. However, H1B visa stamping is required for second employment after the H1B petition has been approved.

Important First Step:

Check the immigration status of the person you want to hire:

•If you want to hire someone who needs a sponsor in order to keep working for you,

• They want to change or extend their current immigration status.

• When an employer files an H-1B visa petition for someone who is already in the United States, it is asking USCIS to change and/or extend that person’s immigration status.

• It is assumed that they have an existing status that hasn’t run out.

Note:

If someone’s status has expired, it is not easy (and almost impossible legally) to change or extend their status. In these situations, talking to an immigration lawyer can help figure out if there are other options.

Steps to take before hiring an H-1B worker who is already in the U.S. legally

As the employer, you must first figure out the prevailing wage for the job. This is the statistical average wage for workers in the same job in the same area.

What does the United States Department of Labor say is the Prevailing Wage?

“The prevailing wage rate is the average wage paid to workers in a certain job in the area where the job will be done,” says the definition.

Note

The “prevailing wage” is the wage that applies under a collective bargaining agreement, like for a public-school teacher, or, if there is no union, it is the average wage paid to workers in a certain job in a certain place.

When there is no collective bargaining agreement, there are three ways to figure out the prevailing wage:

1. Send the job description to the DOL through an online system to get a formal prevailing wage determination (PWD).

2. Look at the DOL’s wage data and figure out the right job and salary level on your own.

3. Use a private survey of wages that follows DOL rules. You can either do your own wage survey, which, given the requirements listed below, might be hard to do, or you can buy a survey from a company that collects and analyzes wage data.

How to Access the Wage Rate for a Particular Job?

• Effective January 4, 2010, employers can obtain this wage rate by submitting a request to the National Prevailing Wage and Center (NPWC)
• By accessing other legitimate sources of information such as the Online Wage Library, available for use in some programs”
• Online Wage Library or Foreign Labor Certification Data Center are used interchangeably

Note on Standard Occupational Classification

• Since September 1999, the Standard Occupational Classification (SOC) has been used by the OES program to classify occupational wage information
• The SOC provides a common language for categorizing occupations. It also serves as the framework for information being gathered through the Department of Labor’s Occupational Information Network (O*NET)
• The O*NET provides the general public information on skills, abilities, knowledge, tasks, work activities, and the specific vocational preparation levels associated with occupations
• O*NET information can be found at https://online.onetcenter.org/. Wage data from the OES survey and occupational information in O*NET are both classified by the SOC, reducing the need to use crosswalks to connect wages to occupational requirements

You can also use a private wage survey. However, the DOL’s criteria that a private wage survey must satisfy are the following:

1. The data supporting the survey must have been collected within two years of the survey’s publication date.
2. The survey must be the most current edition and less than two years old.
3. The survey must include wage data for the commuting area where the job is located.
4. The survey’s job description must match the job description for the H-1B worker.
5. The wage data must come from a cross-section of industries that employ individuals in a particular job.
6. The survey must provide an arithmetic mean (weighted average) salary.
7. The survey must follow a statistically valid methodology

What is the Minimum Wage Requirement for All Employment-based Visas?

• The requirement to pay prevailing wages as a minimum is true of most employment-based visa programs involving the Department of Labor
• In addition, the H1B, H1B1, and E3 programs require the employer to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher

For the updated processing timelines check out https://flag.dol.gov/processingtimes

The U.S. Department of Labor periodically updates these timelines.

When Can I File The Petition?

• If the H-1B candidate you’re planning to hire already has H-1B status and was counted against a prior year’s quota, you can file your visa petition at any time
• However, if the candidate is subject to the quota, it gets more complicated for example they worked for a nonprofit and was eligible for cap-exempt H-1B

What is Form I-129?

“Petitioners use this form to file on behalf of a nonimmigrant worker to come to the United States temporarily to perform services or labor, or to receive training, as an H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 nonimmigrant worker. Petitioners may also use this form to request an extension of stay in or change of status to E-1, E-2, E-3, H-1B1 or TN, or one of the above classifications for an alien”.

Filing an I-129 Form for Your Prospective Employee

• To sponsor an H-1B worker, the employer must file an I-129 petition with USCIS, asking the agency to approve the foreign worker for H-1B status
• Depending on the person’s current status, the employer asks USCIS either to extend the person’s status or to change and extend the person’s status

Required Documents to Include with the Petition

• Forms I-129 Petition for a Nonimmigrant Worker, H Classification Supplement to Form I-129, and H-1B Data Collection and Filing Fee Exemption Supplement
•  Both the I-129 Petition and H Supplement require signatures. The Data Collection form does not require a signature
• Support letter from the employer confirming the job offer to the foreign worker and explaining the terms and conditions of the proposed employment
• Copies of the foreign worker’s educational degrees and transcripts. If the degree and transcript are from another country, include a U.S. equivalency evaluation report
• Copies of the foreign worker’s identification and current immigration documents, as applicable (passport, visa, I-94 Arrival/Departure Record, USCIS Forms I-797 for prior applications or petitions, SEVIS Form I-20 for F-1 students, etc.)
• Documentation to show that the foreign worker/prospective employee is maintaining lawful status in the U.S., such as transcripts for F-1 students or paychecks for H-1B workers
• Base Filing Fee ($460 as of 2021)
• Fraud Prevention and Detection Fee: $500 as of 2021
• ACWIA Fee, unless an exemption applies: The 2021 fees were $750 for employers with 25 or fewer full-time employees or $1,500 for employers with more than 25 full-time employees
• Public Law 114-113 Fee, as required for employers that have 50 or more employees in the U.S., more than 50% of whom are in the U.S. in H-1B or L status ($4,000 as of 2021)
• Certified Labor Condition Application (“LCA”) from the U.S. Department of Labor (DOL). As mentioned above, you need to determine the prevailing wage and then file the LCA by using the Department of Labor’s FLAG portal. It usually takes a week to receive the certified LCA

H-1B transfer is a multi-step process of which determining Prevailing Wage is the most complex.  You can make a guestimate about your wage level, by using different online tools. However, consulting an attorney might give you a better idea. Attorney Raju Mahajan & Associates has been trying to assist individuals or employers in hiring. Our immigration law office provides numerous legal services, including online consultations, which you can have access from any part of the world.