H-1B VISA
Prevailing Wage
We are required to pay the "prevailing" wage or the "actual" wage for the position that is being offered--whichever of the two is higher. The actual wage required depends upon the requirements and responsibilities for the job. The first step in determining this is to submit a form to the Virginia Employment Commission in Richmond.
The VEC form includes information about the background required for the position - education, experience, etc. - as well as what duties the individual will perform. The form, when completed, is faxed to the VEC for their determination of the prevailing wage. It may take 1-2 weeks to get a reply, depending upon the current workload of VEC.
The Labor Condition Agreement
The second step is to obtain an approved Labor Condition Agreement (LCA) from the Department of Labor office in Philadelphia. The LCA requires that we agree to certain employment conditions:
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That we will pay either the prevailing wage for the position, or the acutal wage paid to other at the University in similar positions, whichever is more. Although other alternatives can be used for prevailing wages, the University uses the one obtained from the VEC, as that protects us from charges of using an incorrect pay scale. As of 8 March 2005, we must pay 100% of that wage.
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That the employment of the H-1 will not adversely affect the working conditions of US employees.
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That there is no work stoppage at the time and if there is one, that employment of the alien will end.
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That notice is made of this H-1 petition through posting.
The LCA is reviewed for accuracy by the Department of Labor, but is not checked for truthfulness. However, strict penalties apply for filing false LCAs. This form is returned to the University in anywhere between one and four weeks.
The Application to Immigration
Once the signed LCA is returned, an application for H-1 status may be filed with Immigration. In this application, we must prove that we are hiring the individual in a position that meets the qualifications as "professional" and that the individual has the same qualifications. Documentation sent includes:
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The alien's complete CV or résumé.
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Diplomas or transcripts from all post-secondary education. If not in English, a certified translation must be attached. The educational documents must indicate the area of study--a document just saying the alien has the Ph.D. does not suffice.
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Copy of the alien's job contract or other written agreements.
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If the alien is in the U.S., copies of his/her I-94 form and that of all dependents who accompany him/her; any I-20 ID copies (if previously in F-1 status); IAP-66 pink copies (if in J-1 status); or prior H-1B approval notices if appropriate.
Approval times for these petitions vary considerably, with some approved in as short a time as two weeks; others taking six weeks or more.
H-1B Application Fees
ISSS has a processing fee of $750 for all new H-1B applications. The only exception to this is if the employee will be on a tenure track. Please submit payment to ODU budget code 1IN30 or in the form of a check.
There are two fees that all institutions of higher learning must pay when making an application for an H-1B: the Form I-129 fee ($190) and the anti-fraud fee ($500). These two separate checks must be made out to "Department of Homeland Security." Submitting only these two checks means the application will go through regular processing (approximately three months).
Should the H application you are submitting need to be processed in five to six weeks, it is possible to request Premiuim Processing by issuing a third check for $1000. This may be paid by the employee, where as the $190 and $500 must be paid only by the employer.
Penalties for Terminating H-1B Employee Before End of Petition
Should the alien's position be terminated -- due to lack of funds or poor performance -- before the end of his/her authorization, the hiring department is responsible for covering the individual's return transportation to his/her country.
Penalties for Violating a Labor Condition Agreement or other H-1B Condition
Employers who willfully violate conditions of the H-1B program may be fined up to $5,000 and barred from H-1B petitions for up to 2 years.
