What Must an Employer Do Before Hiring an H-1B Worker

Hiring an H-1B worker is a lot harder in today’s climate, and right now the Trump Administration is considering closing down this form of immigration for at least a year. 

Yet many employers will still want to attempt to bring on H-1B workers to fill gaps in their employment. To do this, they must take a series of legal steps.

First, an employer must review the details of the proposed job. For it to be H-1B eligible it must require a bachelor’s degree or above, as well as specialized knowledge in the field. There is a reason why these visas are most popular with IT and medical employers. 

The employer should then notify current employees that a vacancy is available. This must be done thirty days before filing the Labor Conditions Application (LCA). The LCA is designed to show that the employer cannot fill the position with an American employee. 

The LCA must also show the worker will receive the same amount of pay as other workers in the position, that they won’t be impacted by the new hire, and that there is no controversy regarding labor conditions or pay at the time of hiring. The waiting period gives employees a chance to object, to apply for certain positions, or to refer potential employees into those positions.

Once the LCA gets reviewed you’ll have to fill out a petition packet that contains several forms. The nonimmigrant worker will have to complete some of those forms. Many will do this within US embassies within their own home countries. 

To improve your potential employee’s chances of acceptance you should work closely with an immigration attorney to make sure the application is filled out correctly and makes a solid case for hiring new employees. Your attorney will be able to tell you if anything in your application appears exploitative, either to the proposed worker or to the workers who are already in your company. 

Remember, you are both an applicant and a sponsor in this process, and it’s important to get everything right. You should also be mindful of the fact that USCIS is facing financial troubles and is planning on raising application fees. If you are going to try to hire an employee on one of these visas you should act quickly.  The employee’s visa will last six years, which means if you’re able to get it done quickly you may not have to worry about it until immigration policy changes again.

See also:

3 Questions About Immigration and Employment, Answered

How to Found a Company in the United States

Remote Work and US Immigration Law