Immigration Lawyer New York

Employer Visa Sponsorship Questions and Information for Employers

How and when may we ask job candidates about their sponsorship needs?

You can and should demand that all job candidates be authorized to accept U.S. employment, by asking, for example, “Are you authorized to work and accept new employment in the United States?” However, you may not ask about a candidate’s national origin, citizenship*, current immigration status, specific documents, or the duration or legal basis for any current work authorization they may have. You should not ask to see proof of work authorization until after a job offer is made, as seeing these documents earlier could subject you to a claim of discrimination if no job offer is made to that candidate.

You may also ask, “Do you now, or will you in the future, need sponsorship from an employer in order to obtain, extend or renew your authorization to work in the United States?” You must ask the same questions of all applicants, preferably at the same point in the process, in order to avoid discrimination. This is best done by use of a standard printed questionnaire at the initial screening or interview stage. Even permissible questions such as these may not be asked selectively, based on how a candidate looks or sounds to you.

*There are exceptions for certain government agencies and their contractors, which may require U.S. citizenship as a condition of employment.

What can we do about the H-1B cap and our hiring needs?

Write to your Congressmen and Senators and tell them the current H-1B cap does not meet the needs of the U.S. labor market. The H-1B cap of 65,000 is unrealistic, and it must be increased if U.S. companies  are to be able to hire the best-qualified workers they need in order to grow their businesses and remain globally competitive.

Talk to an immigration attorney about your overall recruitment and hiring activities, such as on-campus interviews, referral programs, search firms and the publications and websites where you advertise, internships and employee training programs, as well as your needs for any specific position, and the visa options which may be available to promising candidates for that position. For an overview, each alternative listed below is described briefly under the full list of categories of temporary visas.

If your organization has a formal internship or training program, or wants to create one, there are two types of visas available for trainees, namely the H-3 and J-1 visas. However, due to changes effected in July 2007, most recent graduates of U.S. programs are no longer eligible for J-1 status as an intern or trainee.

There are several treaty-based visas that may make professional hiring and visa sponsorship possible despite the H-1B cap: these options will become apparent only after a job offer has been made, because you may not ask applicants about their nationality or ask to see their work eligibility documents at the interview stage. Treaty-based visas include the TN-1 visa for qualified nationals of Mexico or Canada; the E-3 visa category for Australian professionals; a quota of H-1B1 visas reserved for nationals of Chile and Singapore; and the E-1 Treaty Trader or E-2 Treaty Investor visas for nationals of over 75 countries that have treaties of Friendship, Commerce and Navigation with the United States. The E-1 or E-2 treaty company must be majority-owned by individuals from that country, and the job offered is in a qualifying type of position.

If your company is part of a multinational group with offices in the United States and abroad, then you may obtain L-1 visas for foreign employees who have a year or more of experience working for an affiliated company within the organization abroad in a qualifying type of position, where the offered job in the U.S. is also in a qualifying type of position.

If you have a truly outstanding candidate with an impressive resume and credentials, who is well known in the field, then an O-1 visa for "aliens of extraordinary ability" may be appropriate for that candidate. This visa is for people who have achieved substantial national or international recognition for their work in the arts, sciences, business, education or athletics.

We just posted this job for the foreign worker’s H-1B petition or E-3 application. Why do we have to post it again for the permanent labor certification?

This is a common misunderstanding among employers new to immigration processes. The required "posting" for an H-1B Labor Condition Application (“LCA”) is not a job offer, and it does not require advertising. The purpose of posting the LCA contents is to notify all other workers in similar positions of the wage and benefits being offered to a foreign professional worker for a particular job in a particular location. It is merely a public notice of the wages and working conditions of the H-1B or E-3 job. The Department of Labor requires posting the contents of an LCA so that U.S. workers in the same location will know they are not being undercut by foreign workers willing to work for less, and so that the foreign professional knows he or she is not being exploited and underpaid for that job. An LCA posting is not an advertisement, nor is it a notice that the job is open to any qualified U.S. worker who wants it.

This is very different from permanent alien labor certification (PERM), where the employer must conduct bona fide recruitment efforts for the position before an application can be filed. The employer must prove that it has a permanent, full-time job opening that it is actively trying to fill, but is unable to find any U.S. workers who are qualified, willing and able to fill that permanent position.  The posted notice of job availability, state job order and classified advertisements are all bona fide notices that the job is open to any qualified U.S. workers. The PERM application can only be filed with and approved by the Department of Labor if no qualified applicants apply.

Please explain visa retrogression and the difference between EB-2 and EB-3.

When an immigrant visa category is “backlogged” or “retrogressed” what it means is that a visa in this category is not currently available. Even if an immigrant visa petition is already approved for a foreign worker, that worker will not be eligible to apply for permanent residence until the Department of State makes visas in that category available for that person’s "priority date", because of numerical limitations in the law. The "priority date" is the date on which an application for labor certification was first received by the Labor Department.

The Immigration & Nationality Act allows for a total of 140,000 employment-based immigrant visas per fiscal year. These are allotted to the 5 employment-based preference categories in varying percentages, and then within each preference category, there is a 7% per-country limitation.

Visas in the employment-based second preference category (EB-2) are more likely to be currently available than in the employment-based third preference category (EB-3), because demand is usually lower, but not always. Due to lengthy backlogs in the EB-3 category, many workers are now anxious to have an EB-2 petition filed for them.

However, whether or not an application can qualify as EB-2 will depend on the nature of the job itself, not just the worker’s credentials. The EB-2 category is for jobs where the employer has a legitimate requirement that all qualified candidates must possess an advanced degree related to the position, or its equivalent through at least a Bachelor’s degree plus five years of experience earned after completion of the degree. The EB-3 category is for jobs that require a Bachelor’s degree, Associate's degree, or jobs that require two years or less of related work experience.

Every job is grouped by the Department of Labor into Standard Occupational Classifications, and the employer’s minimum requirements for a specific job may not exceed the standard requirements for that occupational group. If the requirements for a specific position exceed the norm, the employer must be able to document how that job differs from other occupations in the group in a way that justifies the higher educational requirement, or the application for labor certification may be denied.

Furthermore, the labor department deems a master’s degree equivalent to two years of work experience, but the immigration service will not accept any less than five years as equivalent to a master’s degree. Achieving EB-2 classification by way of an equivalency argument may not be possible for certain occupations. A minimum requirement that meets the standards of the immigration service will often exceed what is permitted for that job classification by the labor department. For any occupation that is classified in Job Zone 4, with a Specific Vocational Preparation level of 7, the labor department may find that a requirement of a Bachelor’s degree plus five years of experience is excessive, where a Master’s degree would not be.

What are my responsibilities as an H-1B employer?

1. To post a notice in 2 places on your premises at the location where the H-1B employee will work that discloses the wage, title and location of the offered job, for 10 business days, and then to retain a Public Access File. This posting must begin immediately after electronic filing of the Labor Condition Application.

(see materials on the LCA attestation and Public Access File requirements)

2. To pay for the “US worker training fee” associated with the filing of the H-1B petition: This is $1,500 for most employers, but is $750 for companies with fewer than 25 employees. Even if the foreign worker or someone else pays the legal fees and other costs associated with an H-1B filing, the employer is prohibited by law from seeking or accepting reimbursement for this worker-training fee from the H-1B employee or from a third party, by salary deduction or any other means.

3. To pay the foreign worker at least the wage offered in the petition and stated on the LCA [which must be the higher of the wage actually paid by the employer to similarly-employed US workers, or the prevailing wage for that occupation within the geographic area]. When? As soon as the foreign worker begins work in the job under H-1B visa status. How soon must the job be available for the worker to start after entry into the United States? Within 30 days, otherwise you may be subject to fines for “benching” the sponsored worker. What counts as “wages paid”? Only amounts paid as W-2 salary, with all applicable payroll taxes withheld, count as wages paid. Discretionary bonuses, commissions on sales, non-cash benefits and non-employee compensation do not count as "wages paid" for purposes of compliance with the H-1B labor regulations. You may not treat H-1B workers as independent contractors.

4. To file an amended petition notifying USCIS if any material conditions of employment change during the validity period, such as moving the worker to a different location or jobsite, or reassigning the worker to a different job, other than a vertical promotion.

5. If the worker is terminated during the validity of the H-1B petition, the employer undertakes an obligation to pay the reasonable cost of return airfare to the worker’s home country. However, while this "return transportation" is required by regulation, in practice it is rarely invoked, due to H-1B “portability” provision, which enables the worker to seek another job and begin that job when a new petition is filed, so long as USCIS has not already concluded that the worker is out of status.

In practice, what will happen most often is that the H-1B worker will prefer to take advantage of H-1B portability, and will ask the original employer not to notify USCIS promptly of the termination, in exchange for not seeking the return transportation costs. Employers should cement such an agreement in writing at the time of a termination, in order to avoid liability for ongoing wage obligations under the “no-benching” rules. It would be acceptable for an H-1B employer to stipulate that a terminated H-1B worker must elect within a specified time period either to depart the United States and accept the paid transportation, or to opt for H-1B portability and agree not to seek transportation costs, in exchange for the employer’s agreement not to withdraw the H-1B petition or notify USCIS within a specified period after the termination date.

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Karin Wolman is admitted to the bar in the State of New York.
Her practice is limited to U.S. Immigration & Nationality law.

This website is for general information purposes only. This information is not legal advice, and is not intended to serve in place of legal advice. You should consult with an attorney about your specific question or situation. Hiring an attorney is an important personal and professional decision, and should not be undertaken lightly.

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