H-1B Visas: Frequently asked questions (FAQs)
Sponsoring H-1B Visas
What obligations does an employer have when sponsoring an H-1B visa?
Employers must file Form I-129, Petition for a Nonimmigrant Worker, and complete all related requirements to sponsor an H-1B worker. These requirements include providing wage and worksite information, establishing a valid employer-employee relationship, paying the worker a fair minimum wage, and posting the role at the prospective employee’s worksites. Learn more about these H-1B sponsorship requirements.
What are Labor Condition Application (LCA) posting requirements?
To ensure that hiring a foreign worker does not negatively impact local ones, a Labor Condition Application (LCA) attests to the pay rate and other job details that the prospective foreign worker would receive in the position. Review details that most LCAs must contain.
Employers must post LCA Notices of Filing (NOF) for ten consecutive days in two locations at each of the employee’s worksites. NOFs help to notify US workers that a foreign worker is being sought in their occupation. Employers must submit an LCA to the Department of Labor (DOL) for every H-1B applicant. Certified LCAs must be submitted with each H-1B petition.
Any material changes to the H-1B worker’s employment require a new LCA and may require a new H-1B application.
Do employers need to post an LCA Notice of Filing at third-party worksites?
At third-party worksites, employers must post the NOF on or within 30 days before they file the LCA with the DOL. There are a few different options for posting the NOF:
- At the worksite: If the H-1B employee will work at the third-party worksite, employers should post an LCA there for at least 10 consecutive business days in two or more easily visible places.
- As an electronic notice: Employers can publish or post a copy of the LCA or similar documentation on their intranet, website, electronic bulletin board, employee online forum, or similar venues. The posting must be up for at least 10 days.
- Via email: Employers can email a copy of the LCA once to employees and contractors in similar positions at the listed worksite.
For case-specific advice on LCA postings, contact your trusted Chugh, LLP legal professional.
MANAGING H-1B EMPLOYEES
What are H-1B amendments, and when are they required?
Employers must maintain conditions for their H-1B employees that were outlined in the initial H-1B petition, including work location, pay, and job duties. When there is a “material change” in any of these conditions, an employer must file an amended H-1B petition for the employee with United States Citizenship and Immigration Services (USCIS) before the change occurs. If an amendment is denied, an employee’s H-1B status is not affected.
An H-1B amendment would be required for changes to:
- The work location, if outside of the metropolitan statistical area (MSA) listed in the labor condition application (LCA).
- A reduction or addition of hours.
- Job duties.
- And more.
Read on for more details on when to file an H-1B amendment for work location changes and related FAQs.
How long can a H-1B visa holder continue to work after their I-94 expires if their H-1B extension was filed timely?
In general, the employee has 240 days to work while their H-1B extension application is pending if the following conditions are met:
- The H-1B extension was filed before the I-94 expired.
- The employee still has valid H-1B status.
- The H-1B extension petition was received by the USCIS service center on time, and
- Generally, the employee is working for same employer/petitioner in the same position and at the same location as the prior H-1B visa. This rule may vary based on specific circumstances.
It is necessary to consult with an attorney to determine if the 240-day rule applies to a specific case. There may be unintended consequences if the H-1B beneficiary continues to work without authorization.
Can H-1B employees take parental leave? Do employers have to pay them during this time?
H-1B employees are granted the same working protections as US workers. Employers must comply with the Family Medical Leave Act and local regulations for all employees.
Employers must also maintain the employer-employee relationship during parental leave. While they may not be able to use pay statements to document this relationship, both the employer and employee should document the reasons for the leave and confirm that it was requested by the employee. The letter should explain:
- Why the total annual salary is lower.
- That the employee is still employed by the company.
- That the employee is still on the company’s insurance plan.
Additional documentation is recommended, including a birth certificate, and a copy of the employee’s valid insurance plan.
These rules do not apply to work sabbaticals, short-term vacations, or paid leave. Contact your trusted attorney for more case-specific advice.
Can H-1B employees take extended leave to take care of a sick relative?
Unpaid leave is acceptable if the employer documents with a letter of intent that the leave is unpaid, the employee will return to work under normal circumstances at a future date, and that the employee requested the unpaid leave. More requirements apply.
ALTERNATIVE VISA OPTIONS
What other options are available if my worker is not selected in the H-1B visa lottery?
Individuals who are not selected in the H-1B cap lottery are not eligible to receive an H-1B visa for that fiscal year. However, they may qualify for other nonimmigrant visa categories. These options include:
- H-4 or L-2 visas: If a foreign national's spouse has an H-4 or L-2 status may qualify to work on an employment authorization document (EAD). These visas are only valid while the principal spouse's H-1B or L-1 visa is valid.
- L-1B: Certain individuals with specialized knowledge may be eligible to be transferred from an affiliated foreign office to its US office. Additional conditions apply.
- L-1A: Executive or managerial workers can transfer from a foreign office to a US office if they meet certain requirements.
- O-1: Individuals with extraordinary ability may qualify for the O-1 visa category.
- J-1: Certain roles may qualify for the J-1 exchange visitor visa, including professors and research scholars, physicians, and more.
- F-1: Prospective H-1B workers can remain in the US if they pursue higher education in the country on an F-1 visa. Work authorization may be available for full-time or part-time, depending on the degree program and how far along the individual is in their studies. Certain conditions apply.
- Cap-Exempt Work: Foreign nationals may pursue employment with another employer that is exempt from the H-1B lottery. These employers may include higher education institutions, certain nonprofit organizations, and government research organizations.
Learn more about alternative visas to the H-1B visa.
H-1B EMPLOYEE TERMINATION
What is a 60-day grace period for H-1B workers, and how can they remain in the US after losing their job?
H-1B employees have a 60-day grace period where they can remain in the US after losing their job by being laid off, terminated, or resigning. During this time, they must either:
- Find a new employer to file their H-1B transfer petition.
- File for a dependent visa through their spouse on H-1B or L status, or
- Have a new employer sponsor them on a different visa type.
For more information, read our article on the options available for terminated H-1B employees to remain in the US.
H-1B VISAS AND ENTREPRENEURSHIP
Can an H-1B visa holder own a business? What type of business entity can they own?
Foreign nationals on H-1B status can own a business under specific circumstances. It is important to note however, that an H-1B visa holder cannot work for any company other than their petitioning employer. This includes working for their own company, even if the work is unpaid. If they do work for another company, an H-1B visa holder could lose their H-1B status.
H-1B visa holders can own limited liability companies (LLCs) only as passive investors who do not work for the LLC in any capacity. It is important that their activity with the LLC does not represent unauthorized employment. Additionally, the H-1B visa holder cannot be sponsored by their own LLC. They must continue to be employed by the business that originally sponsored their H-1B visa.
United States Citizenship and Immigration Services (USCIS) closely scrutinizes H-1B visas that are sponsored by a company that the beneficiary has an ownership interest in. S corporations, C corporations, and partnerships can petition for an owner’s H-1B visa, but this is not advisable. H-1B visa holders should discuss entrepreneurial ambitions with their immigration attorney to avoid violations of their H-1B status. Read more about H-1B visas and entrepreneurship.
Can foreign nationals on an H-4 employment authorization document (EAD) own a company and sponsor their spouse on an H-1B visa?
Because H-4 visas are tied to their spouse’s H-1B visa and not to a specific employer, it may be easier for them to open a business than for their H-1B spouse. H-4 visa holders must ensure that their entrepreneurial activities do not constitute unauthorized employment. However, individuals on H-4 visas should not sponsor their spouse’s H-1B visa at their new company. Learn more about entrepreneurship for H-4 visa holders.
Can I work on an H-4 employment authorization document (EAD) if the EAD is expired, and my H-4 EAD extension is pending?
No, if an H-4 visa holder’s EAD has expired and the renewal is pending, they cannot work. They will need to cease working until after the renewed EAD is approved and the EAD card is issued.
Can I travel while the H-4 extension is pending?
Traveling abroad while an H-4 extension is pending will result in the application being denied.
It is important to consult with an attorney and consistently check the status of the visa application. Individual circumstances and case information may allow for extensions and special travel permission.