The H-1B program allows U.S. companies to temporarily employ foreign workers in occupations that normally require a specialty degree. The 85,000 visas available include 20,000 set aside for holders of U.S. master’s degrees and 65,000 for everyone else. When demand for H-1B visas has exceeded 85,000 in the past, USCIS has conducted a lottery of the petitions it receives during the first five business days of April.
Before filing an H-1B petition, employers must obtain a certified labor condition application (LCA) from the U.S. Department of Labor (DOL), Elaine C. Young, an attorney with Kirton McConkie in Salt Lake City, Utah, explained in an article in the March issue of Federal Employment Law Insider. Employers also must verify that the wage they offer meets or exceeds the prevailing wage for the occupation in the geographic area of intended employment, as determined by DOL standards.
The DOL sets four wage levels for each occupation, with Level 1 representing entry-level workers and Level 4 representing employees who can work without supervision or who hold lead roles.
Young points out that the prevailing wage isn’t the minimum wage stated by the DOL. “An employer must attest on the LCA that it will pay the H-1B worker the minimum wage determined by the DOL or the actual wage it pays its other employees with similar experience and qualifications in the geographic area of intended employment, whichever is higher,” she wrote.
Young also wrote that employers should keep in mind that unless an H-1B employee is truly entry level and the occupation clearly qualifies as a specialty occupation, USCIS will likely question the “specialty occupation” nature of the job if the employer indicates that it merits a Level 1 wage on the LCA.
In June 2017, the DOL announced that it will “enforce vigorously all laws within its jurisdiction governing the administration and enforcement of non-immigrant visa programs” in order “to increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse.”
The announcement also said the DOL will continue to work with the U.S. Department of Justice and the U.S. Department of Homeland Security to further investigate and detect visa program fraud and abuse. The DOL said its Office of Inspector General has focused investigative resources toward battling visa fraud, including in the H-1B program. Those efforts have led to convictions of “attorneys, employers, recruiters, corrupt government employees, and labor brokers,” the announcement said.
|Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.|