How does a company sponsor H1B visas?

Dear Attorney at Law, I recently founded a technology startup in the Dallas area. My business has been around for 6 months and we are still not profitable. There is a chance we could go under in the next 6 months, but I am optimistic we will begin to become profitable before that time. In the meanwhile, we have 3 full-time employees, one of which is working here currently on an F1 visa. He has asked us to become e-verified or in some other manner sponsor his H1B visa. We have already lost one employee previously over a similar issue because we did not feel we were adequately resourced to support such an endeavor. We cannot afford to keep hiring F1 workers only to lose them 3-6 months later because we can't sponsor their H1B visas. We basically train them and then lose them right when they are beginning to make serious contributions. If you could please briefly describe all the costs in time, forms, legal, and government fees of what it would take my company to sponsor this individual and subsequent individuals H1B visas, I would greatly appreciate that. We cannot afford to pay for this information, but I can guarantee that if we decide to move forward with the process, we will move forward with your office as a sign of gratitude for providing this free consultation. Thanks and best regards, Oren Salomon Post 2 Answers Ravi Reddy, Startups, H1B, Manhattan ,Desi, Telug...
3 votes by Priya Alagiri, Ben Hazelwood, and Pratyush Agarwal

When you say F1 workers, i assume they are working on OPT. Second if you are e-verified depending on the Masters program, the OPT can be extended upto 17 months from the normal 12 months. Getting e-verified is easy for a company, not much expenses involved, just showing the required docs to USCIS. As far as h1b for startups, unless you have business plan that shows VC funding or revenue that can pay the min salary as per DOL for the employees, it is very difficult to get the h1b approval. Comment Loading... Post 5:54 on Tue Feb 8 2011

What is an H1B Sponsor ? Which US Companies can Sponsor for 2011 H1B Visas ? What are the Latest Rules and Regulations for H1B Sponsoring Companies in 2011 ? An H1B Sponsor is the common term used for a Legally Registered US Corporation that employs and files an H1B work visa application for a Foreign national to work in America. Other associated terms for an H1B sponsor are: H1B Sponsoring Company, H1B Employer Each year thousands of H1B Sponsoring Companies in the USA file visa applications for Foreign workers. Securing a suitable employment position (one that meets the minimum H1B visa programs sponsorship requirements) with an H1B Sponsor Company in the USA is mandatory for a Foreign applicant to be issued an H1B Visa in 2011. Any US employer can sponsor an H1B petition in 2011, provided it has an IRS Tax Number, also known as an IRS Number or Tax ID Number. This number is needed for obtaining approval of the Labor Condition Application (LCA), which is an essential preliminary to the H1B visa petition itself. However, many US companies do not sponsor for work visas or have policies against sponsorship employment. H1B Sponsors in 2011 should take note that sponsoring an H1B visa petition involves them making a number of undertakings that include: The H1B Sponsor pays the H1B worker at least the higher of the wage paid to similar workers in the same company or the "prevailing wage" (usually determined by the relevant State Employment Services Agency) for the occupation in the area the H1B worker will be employed; That the recruitment of the H1B worker(s) will not adversely affect the conditions of the employer's US-resident employees in similar jobs; That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H1B workers to be employed at the site of any subsequent strike or lockout; That a copy of the LCA form will be given to the H1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H1B worker will be working; To maintain records of the LCA and the H1B workers employment for inspection by the US Department of Labor.

Note that the prevailing wage is generally lower for non-profit and academic/research organizations Once an H1B Sponsoring Company has brought an employee to the US on an H1B visa (in 2011 or in any previous year), should the sponsor company dismiss the H1B employee before the expiry of the visa, the H1B sponsor company is liable for any reasonable costs that the employee incurs in moving him/herself, his/her effects, and (where appropriate) his/her dependants, back to his/her last foreign residence. This provision covers only dismissal, it is not relevant when an H1B employee chooses to resign. In 2011, H1B Sponsor Companies have the same obligations than in 2010 for Recordkeeping, Reporting, Notices and Posters, when Hiring a Foreign National Worker on an H1B Visa

H1B Sponsor 2011 Notices and Posters There is no poster requirement.

There is a notice requirement. The H1B Sponsor must inform US workers of the intent to hire a foreign worker in 2011 by providing notice of the filing of the LCA to the bargaining representative if there is one, or, if there is no bargaining representative, by posting notice of filing in two conspicuous locations at the employer's establishments, or by providing electronic notice (see below). The notice must be provided on or within the 30-day period before the date that the labor condition application is submitted to DOL. The notice must: Indicate that H1B workers are sought Identify the number of H1B employees the employer plans to hire State the occupational classification of the H1B employees State the wages offered State the period of employment State the locations at which the H1B 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 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." If the sponsoring employer company is an H1B-dependent employer or a willful violator, and the LCA is not being used only for H1B exempt nonimmigrants, the notice must contain additional information and must also contain the following statement: Complaints alleging failure to offer employment to an equally or better qualified U.S. applicant or an employer's misrepresentation regarding such offers of employment may be filed with the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices, 950 Pennsylvania Avenue, NW, Washington, DC 20530, Telephone: 1-800-255-8155 (employers), 1-800-255-7688 (employees) As noted above, notification may occur in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the bargaining representative for workers in the occupation or, if there is no bargaining representative, be posted for 10 consecutive days in at least two conspicuous locations at each place where any nonimmigrant will be employed. Notice can also be provided by whatever electronic means the employer normally communicates with its employees (e.g., e-mail, bulletin board, and home Web page). A copy of the LCA must be provided to each H1B nonimmigrant worker no later than the time the H1B nonimmigrant reports to work at the place of employment.

H1B Sponsor 2011 Recordkeeping Employers of any H1B, H1B1, and E3 workers are required to make a filed LCA and its supporting documentation available for public inspection at the employer's principal place of business or at the place of employment of the H1B / H1B1 / E3 workers within one day after the date of submission of the LCA. This public inspection file must contain the following: A copy of the certified LCA including cover pages Documents providing the wage rate paid to the H1B nonimmigrant worker Method used to establish the "actual wage," including any periodic increases which the system may provide Prevailing wage rate and a general description of the methodology of the source

Documents showing satisfaction of the union/employee notification requirements Summary of benefits offered to U.S. workers and H1B workers Where the employer utilizes the definition of "single employer" in the Internal Revenue Code (IRC), a list of any entities included as part of the single employer in making the determination as to its H1B-dependency status

In the event of corporate change, the public inspection file must also contain: A sworn statement by a successor entity accepting all liabilities of predecessor entity Affected LCA number(s) and effective date(s) Description of successor entity's actual wage system Successor entity's employer identification number

Additional documentation is required for employers who are H1B-dependent, willful violators, or TARP/Federal Reserve Chapter 13 recipients: List of "exempt" H1B nonimmigrant workers Summary of recruitment methods, if the employer hired any "non-exempt" H1B workers

In addition to the records listed above, every H1B dependent, willful violator employer, and TARP/Federal Reserve Chapter 13 recipient must keep the required documentation concerning compliance with the non-displacement obligation. Additionally H1B, H1B1, and E3 employers in 2011 must maintain complete payroll records and make such available to the Wage and Hour Division upon request. The records must include the following information: Name, address, and occupation, for all H1B, H1B1, and E3 workers and any other worker employed by the employer in the same occupation at the place of employment Rate of pay, total wages paid each pay period, date of pay and pay period covered by the payment, and total additions to or deductions from pay each pay period for each H1B, H1B1, and E3 worker and any other worker employed by the employer in the same occupation at the place of employment Hours worked each day and each week by the employee if the employee is paid on other than a salary basis (with respect to H-1B, H-1B1, and E-3 workers and any other worker employed by the employer in the same occupation at the place of employment) With respect to only H1B, H1B1, and E3 workers, whether the worker is a part-time employee Documentation of the offer of benefits and eligibility for benefits provided as compensation for services

Payroll records for the nonimmigrant workers and other employees in the occupational classification must be maintained for a period of three years from the date of the creation of the records (or longer if an enforcement proceeding is in effect) and be kept at the employer's principal place of business in the U.S. or at the place of employment of workers in the H1B visa program. The other records listed above must be kept for one year beyond the end of the employment period specified on the LCA, and be available at the employer's principal place of business in the U.S. or at the place of employment.

H1B Sponsor 2011 Reporting

After the LCA is certified, if there is a strike or lockout of workers at the place of employment in the same occupational classification as the H-1B nonimmigrants, the employer must notify ETA within three days.

H1B Sponsor 2011 Penalties/Sanctions When violations are found, the Administrator of the Wage and Hour Division may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The Administrator may also impose other remedies, including payment of back wages. Within 15 days of the date of the determination, any interested party may request a hearing on the Wage and Hour Administrator's determination before an Administrative Law Judge (ALJ). Within 30 days of the decision by an ALJ , an interested party may request a review of the ALJ's decision by the Department's Administrative Review Board. Employers found to have committed certain violations may also be precluded from future access to the H1B program as well as to other nonimmigrant and immigrant programs for a period of at least one year and as much as three years depending on the nature of the violation. An H1B sponsoring 2011 company will be considered in compliance notwithstanding a technical or procedural failure if such employer: Makes a good faith attempt to comply; Voluntarily corrects violations within 10 business days of being advised by an enforcement authority; Has not engaged in a pattern or practice of willful violations; and For prevailing wage violations, can establish that the wage was calculated consistent with recognized industry standards and practices.

Relation to State, Local, and Other Federal Laws Various federal, state and local labor standards such as the Fair Labor Standards Act, will apply to foreign workers employed in the U.S.

H1B Visa Program 2010 - New Rule for H1B Sponsors / Employer Companies On January 13th, 2010 the US Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid 'H1B employer-employee relationship' to qualify for the H1B visa 'specialty occupation' classification. The memorandum clarifies such relationships, particularly as it pertains to independent contractors, selfemployed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled: "Determining Employer-Employee Relationship for Adjudication of H1B Petitions, Including Third-Party Site Placements: Additions to Officer's Field Manual (AFM) Chapter 31.3(g) (15)(AFM Update AD 10-24)."

In addition to clarifying the requirements for a valid H1B employer-employee relationship, the memorandum also discusses the types of evidence petitioners (H1B sponsor companies) may provide to establish that an H1B employer-employee relationship exists and will continue to exist with the H1B holder throughout the duration of the requested H1B visa validity period.

Quick Summary: the new H1B employer rule adds a lot of extra red tape for the following types of companies: 1. agencies and consulting firms that employee, but then sub-contract out the employee to work at a different client site location * the rule does NOT affect agencies who provide services that facilitate the process of helping people to find sponsorship jobs at other end-companies who then employ and file for the H1B visa

-------------USCIS Memorandum on Establishing the "Employee-Employer Relationship" in H1B Visa Petitions Introduction U.S. Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H1B 'specialty occupation' classification. Related Pages: What is the H1B Employer Employee Relationship Rule ?

Questions & Answers Q: Does this memorandum change any of the requirements to establish eligibility for an H1B petition? A: No. This memorandum does not change any of the requirements for an H1B petition. The H1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employeremployee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H1B petition including: establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation; demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

Q: What factors does USCIS consider when evaluating the employer-employee relationship? A: As stated in the memorandum, USCIS will evaluate whether the petitioner has the "right to control" the beneficiary's employment, such as when, where and how the beneficiary performs the job. Please see the memorandum in the links in the upper right hand of this page for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary. Please note that no one

factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists. Q: What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary? A: You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence. Q: What if I cannot submit the evidence listed in the memorandum? A: The documents listed in the memorandum are only examples of evidence that establish the petitioner's right to control the beneficiary's employment. Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents. You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists. You should explain how the documents you are providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established. Q: What if I receive or have received an RFE requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE? A: If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE. You should explain how the documents you are providing address the deficiency(ies) raised in the RFE. Adjudicators will review and weigh all evidence based on the totality of the circumstances. Please note that you cannot submit similar evidence in place of documents required by regulation. Q: Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist? A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period. Q: What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period? A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met), however, USCIS will limit a petition's validity to the time period of qualifying employment established by the evidence. Q: What happens if I am filing a petition requesting a "Continuation of previously approved employment without change" or "Change in previously approved employment" and an extension of stay for the beneficiary in H1B classification, but I did not maintain a valid employer-employee relationship with the beneficiary during the validity of the previous petition? A: Your extension petition will be denied if USCIS determines that you did not maintain a valid employeremployee relationship with the beneficiary throughout the validity period of the previous petition. The only

exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own). Such exceptions would be limited and made on a case-by-case basis. Q: What if I am filing a petition requesting a "Change of Employer" and an extension of stay for the beneficiary's H1B classification? Would my petition be adjudicated under the section of the memorandum that deals with extension petitions? A: No. The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment. All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions. Q: I am a petitioner who will be employing the beneficiary to perform services in more than one work location. Do I need to submit an itinerary in support of my petition? A: Yes. You will need to submit a complete itinerary of services or engagements, as described in the memo, in order to comply with 8 CFR 214.2(h)(2)(i)(B) if you are employing the beneficiary to perform services in more than one work location. Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary. Q: What happens if I do not submit evidence of the employer-employee relationship with my initial petition? A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to a request for evidence (RFE). However, failure to provide this information with the initial submission will delay processing of your petition.