Common Mistakes Made by H1B and L Employers

 Posted on September 16,2015 in Immigration

Sometimes, in haste to help a valued employee relocate between branches or to begin a new job in a new country, employers can be a little too zealous in their application for that worker’s visa. Whether by mistake or by design, there are numerous small errors often made by employers in trying to get their workers into the United States. Therefore, it is important that employers be aware of these mistakes.

Making the Foreign National Pay Costs

Employers are prohibited under Department of Labor (DoL) regulations from making the prospective foreign worker pay any costs associated with his or her visa application.

20 CFR 655.731(c)(9)(C) states that wages may not be deducted (preemptively or retroactively) to recoup their “business expense”, naming specifically attorney fees and visa processing fees as expenses that fall under this regulation. If an employer tries to recoup these costs, they may face a full-blown audit from DOL.

Failure to Submit an LCA

Before the visa petition may even be submitted, an employer must file a Labor Condition Application (LCA) with the Department of Labor. An LCA lists the job the employer wishes to fill with a foreign national, as well as the standards under which the job will be performed (for example, the salary rate and the working conditions). Many employers are simply never made aware of this requirement; however, if it is not filed, and the employee then begins work, he or she is in essence working without authorization, which can have consequences for both the employee and the employer.

Missing Filing Deadlines

Many employers vastly underestimate just how long it can take to file an H1B or L visa. Because of this, many times they begin the process far too late to make the filing deadlines for a given year. For example, there is a cumulative cap of 85,000 on H1B visas (between the categories)—this was reached within the first week in 2015. If an attorney or employer does not have his or her petition ready in time, he or she will often have no chance whatsoever at securing a visa for his or her foreign national.

Insufficient Job Description or Supporting Documentation

When one submits a visa application for an H1B worker, a detailed description of the job he or she will perform must be included. The job must be a ‘specialty occupation,’ which has specific requirements (for example, a job requiring specialized training), and the worker’s duties must be set out in the application. Supporting documentation must also be attached—for example, proof of qualifications and experience, designed to show that the person is indeed qualified for the job he or she will allegedly fill. Failure to do this will likely not trigger an audit, but it will certainly spur a request for more information, or a denial of the petition.

An Attorney Can Help Smooth Out the Process

Employers have multiple concerns in their day-to-day business operations. Hiring an experienced immigration attorney to ensure your worker’s H1B or L visa petition is completed to satisfaction can save you time, money and difficulty. The dedicated Chicagoland immigration attorneys at Mevorah & Giglio Law Offices have years of experience with work visa applications, and we are happy to share that knowledge with you. Contact us today to schedule your initial consultation.

Sources:

https://www.law.cornell.edu/cfr/text/20/655.731

https://webapps.dol.gov/elaws/h1b/glossary.aspx?word=lca

http://uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2016-cap-season

http://uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/H-1B/h1b-fy-11-characteristics.pdf