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Employer Requirements for H-1B

Aside from filing a petition on behalf of a foreign worker (sponsoring a work visa) an employer has to take several affirmative steps. First and foremost, an employer must file a Labor Condition Application (LCA) stating that they took good-faith measures to recruit U.S. workers for the open position and ensure that the salary meets all applicable wage requirements. Moreover, they must attest to the fact that they offered the job to any U.S. worker that applied and is equally qualified. Lastly, the employer cannot lay off any U.S. employees, with equivalent positions, for approximately 6 months surrounding the H-1B petition (the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing). At the Law Offices of William A. Proetta, immigration attorneys represent companies that are seeking to sponsor foreign workers to come to the United States on H-1B visas. We represent clients throughout New York & New Jersey including Edison, Jersey City, Elizabeth, Newark, Woodbridge, and Bridgewater. To learn more about how we may be able to assist your company, contact our office at (732) 450-8300 for a free consultation.

 Limits on H-1B Employment

According to the USCIS, the H-1B visa holder can only work for the sponsoring U.S. employer and only do work that is described in the petition. In some instances, the employer can allow the H-1B worker to be at the location of another employer if all applicable rules from the Department of Labor (DOL) are followed. On January 8, 2010 the USCIS issued a memorandum stating that there must be a clear employee-employer relationship between the employer petitioner and the prospective beneficiary (H-1B work visa holder). The memorandum goes on to outline the new requirements and the required documents that must be provided by the employer to prove that a valid relationship exists. The memorandum gives three clear examples of what is considered a valid “employee employer relationship”

  • an accountant working on and off-site to work
  • a fashion model
  • a computer software engineer working off-site

New Jersey and the surrounding tri-state make up a large concentration of the software industry and therefore there is constantly a high demand for software engineers. That is why a large amount of non-immigrant H-1B visa holders in the area are computer engineers. For prospective software engineers, the sponsoring employer must agree to meet a portion of the following requirements:

  • Supervise the worker on and off-site
  • Supervision is to include calls, reports, or visits
  • Have ability to control the employee’s work on a day-to-day basis
  • Provide tools for the job
  • Hire, pay, and have the ability to fire the beneficiary
  • Perform progress/performance reviews & evaluate employee’s work product
  • Claim employee for tax purposes
  • Provide employee benefits
  • Use “proprietary information” to perform work
  • Produce an end product related to the business
  • Have an “ability to” control the manner and means in which the worker accomplishes tasks