Orange County Branch Newsletter

November 2012

Law & CE

What Do I Do When Hiring a Non-U.S. Citizen?


More and more engineering firms are hiring employees from outside the United States.  One of the ways firms are filling in experience voids is through the use of an H-1B visa.   The H-1B visa is available to U.S. employers who wish to temporarily employ foreign nationals.  Unfortunately, complying with immigration and visa requirements of the U.S. Citizenship & Immigration Service (USCIS) can be a confusing process, and the treatment of these new employees is different than your U.S. Citizen employees.  This month’s article will discuss H-1B visa employees and how the hiring and employment process is very different.

To obtain an H-1B visa, the U.S. employer becomes the sponsor of the person who will have the visa.  The U.S. employer must have an Internal Revenue Service (IRS) tax identification number and it must hire the H-1B visa candidate in an employer-employee relationship, meaning that the employee may not be an independent contractor.  The employer must show that it may hire, pay, fire, supervise, or otherwise control the work of any such employee. 

H-1B eligibility requires a specialty occupation and an employee that meets the requirements for the specialty occupation.  The core specialty occupations include: IT, Computing, Finance, Accounting, Banking, Marketing, Advertising, PR, Sales, Recruiting, Engineering (all types), Teaching, HealthCare/Medical, Legal, Lawyers, Networking, Telecoms, Business, Management and Hospitality.  The specialty occupation must require a bachelor’s degree or equivalent in a specialty field.  The reason for this is that the degree should provide the specific knowledge and skill to perform the job for which the person is being hired in the U.S.

Right from the start, the process for hiring a foreign worker requires adherence to a different set of rules.  When a company is going to hire a foreign national, they must file a form with the DOL called the Labor Condition Application (LCA).  Before the LCA is filed, the company must provide notice to its U.S. workers of the intent to hire a foreign worker by providing notice of the filing of the LCA.  This is accomplished by posting notice of filing in two conspicuous locations at the company’s establishments or by providing electronic notice.  The notice must be provided on or within the 30-day period before the date that the LCA is submitted to DOL.  The notice must:

• Indicate that a H-1B worker is sought;
• Identify the number of H-1B employees the employer plans to hire;
• State the occupational classification of the H-1B employees ;
• State the wages offered;
• State the period of employment;
• State the locations at which the H-1B employees will work;
• State that the LCAs are available for public inspection at the employer’s U.S. principal place of business or at the worksite.

The notice must also include the following statement:
“Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”

Prior to hiring a foreign national under the H-1B visa program, a company should be aware of some of the quirky, but important, differences between H-1B visa employees and U.S. employees.  Some of those differences include:

• The company must pay the prevailing wage for the position based on published rates or the employers’ rate, whichever is higher;
• The visa employee must be paid for the time the company represented on the LCA they would work, even if the company and employee agreed to a different arrangement (any changes in the hours or pay must be confirmed in a new or amended LCA).  Failure to pay could result in penalties and payment of back wages;
• When the company has temporary shutdowns in their operations for holidays (i.e. the week between Christmas and New Years) where the U.S. employees are not compensated, the visa employee must be paid;
• If the company must terminate the employment prior to the agreed timeframe, the company is responsible for travel costs to the country of origin unless the employee can transfer or obtain a new H-1B visa with another employer.

Once the company becomes a sponsor or employer of the H-1B Worker, the H-1B visa is good for three years, but it may be extended for an additional three years.   The spouse and minor dependents of the employee holding the H-1B visa may also obtain H-4 visas that would allow them admission into the U.S. for the same period of time as the employee.  However, holders of the H-4 visa would not normally be able to work in the U.S. unless they received authorization.

While the H-1B visa program can create good temporary solutions for gaps in qualified employees, it also brings with it some difficult problems and concerns.  In addition to the issues identified above, there are business relationships created between key clients or vendors and the H-1B visa employee that may make a three or six year employment process undesirable.

Additional information, including the required forms for applying for an H-1B visa may be found at http://www.uscis.gov. ; This area of law can be complicated, and it is recommended that a lawyer is consulted early on when this program is considered. 

Please contact us at the Los Angeles, Orange, or San Diego County offices to discuss further.

Nicole A. Davis Tinkham
1100 El Centro Street
South Pasadena, CA 91030
Phone:  (626) 243-1100
Fax:  (626) 243-1111
[email protected]
www.ccmslaw.com

Christie Bodnar Swiss
1100 El Centro Street

South Pasadena, CA 91030
Phone:  (626) 243-1100
Fax:  (626) 243-1111
[email protected]
www.ccmslaw.com

Nothing contained within this article should be considered the rendering of legal advice.  Anyone who reads this article should always consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.
 

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