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Can we make an offer or do we need to check with the immigration attorney first?
This scenario plays out at almost every company where the hiring manager or recruiter is trying to fill the position but does not necessarily understand the immigration implications.
Q: We have identified a candidate who needs H-1B sponsorship. Now what?
STEP 1: Understand candidate's immigration history
If you need to transfer the H-1B for a candidate, these are some important questions to ask -
How long have they spent on the H-1B visa?
If they have spent over 3 years on their H-1B then ask the following questions -
Has their current employer filed PERM for them? (Yes/No)
If yes, has their current employer filed I-140 for them?
STEP 2: Determine the Prevailing Wage
Scenario 1: You have previously hired foreign nationals for the same role
If you recently hired foreign nationals for the same role then you can simply use the Prevailing Wage numbers as your reference point.
If the hiring was done a few years ago, then it is a good idea to check the Prevailing Wage again since the Department of Labor revises these numbers every year. To do that -
Check the SOC title that was suggested by the attorney for this role. You can find it on the LCA notice or the LCA application.
Figure out the state and county for where the job will be located
Here are the Step-by-Step Directions on how to calculate Prevailing Wage
Scenario 2: You have never hired foreign national for this role
Important Note 1 - H-1B visas are for "Specialty Occupation" roles that need special skills or advanced degrees. So, roles such as sales or support representative don't necessarily fit the criteria.
Important Note 2 - It's important to prove to USCIS that the candidate either has academic background or employment experience related to the job. In other words, someone with a master's in Civil Engineering cannot be hired for the job of a software developer, unless the master's degree or the candidate's previous experience clearly shows a link between their past experience and the current role.
You should then reach out to your immigration counsel with the following documents and details -
Candidate's Resume
Copy of the Job Posting - showing the academic and experience requirements
Job location
This will allow the attorney to determine the job and candidate fit and recommend prevailing wage.
Important Note 3 - Determining the SOC is not always simple because the attorney also checks for underlying data to see if the job requires special skills, degrees, experience etc.
With that said, if you are feeling extra confident then here's a step-by-step guide on how to determine Prevailing Wage. Good luck!
Q: How soon can the candidate start working with us?
Short Answer: 2-4 weeks
Unlike domestic employees, foreign national employees cannot start working on just an offer letter. These steps need to happen before the candidate can start working for you -
STEP 3: File LCA | 5 - 10 calendar days
Once the attorney files the LCA, it takes at least 5 days for the Department of Labor to certify the LCA. Note - A certified LCA is required to file the H-1B petition.
What is the LCA?
The Labor Condition Application is filed with the department of labor to prove that you will be paying the employee prevailing wages. Here is a full-length explanation on the LCA process.
STEP 4: File H-1B Petition | 7 - 14 calendar days
Your attorney's office can prepare the H-1B petition draft while waiting for the LCA approval and file with the certified LCA. But I would assume 7-14 days from the LCA approval for this process.
Note - It is a good idea to file H-1B transfer petitions with Premium Processing.
STEP 5: Employee can start work | 7 - 15 calendar days
Scenario 1: Start on Receipt Notice
Technically, the candidate can start working for the new employer on the receipt notice (paper or electronic).
Scenario 2: Start on Petition Approval
Once the petition is approved, the candidate can start working for the new employer.
Q: What criteria do I use to make an offer?
The criteria for sponsoring someone on an H-1B visa is that the position needs to be a "Specialty Occupation", which means that the job requires special skills through experience or education to do the job. What this translates to is that the job needs to be in technical fields. Jobs such as a sales associate, marketing associate or support representative are not considered specialty occupations unless they require special knowledge such as programming languages etc. to do the job.
Q: What job title and salary? I could make the offer at $55 per hour, but the prevailing wage may come to $58 or $52. How do we solve that dilemma?
Job Title - Generally, USCIS and the Department of Labor cares more about the SOC title that the job fits in and not the job title as such. But you should be careful about the job titles when applying for an H-1B. For example, the title of a "Sales Associate" clearly means that this role is not about data analysis, so using something like "Sales Data Analyst" might make more sense. Needless to say that just a technical sounding job title would not help if the role does not require any technical skills.
Salary - Budgets can sometimes be an issue when it comes to deciding on an H-1B salary. Because specialty occupations are usually higher paying jobs, so -
As a rule of thumb, do not make offers less than $50K/year for an H-1B job.
Now, if you do make an offer and the prevailing wage comes out to be more than the offered salary, you will then have to -
Either increase the salary to match or pay over the prevailing wage
Or will have to lower the number of hours/week required to do the job
Q: At which point do we do PW determination for hiring managers to understand the budget requirements for the position.
Hiring managers or recruiter need to understand if they can or cannot hire a foreign national for the role
As a best practice, before a job is posted the hiring managers or recruiters should check with the HR department or the immigration counsel to determine if a job can be offered to a foreign national and the prevailing wage that would need to be met
Q: What documents do you need to do, at minimum an estimate of PW for the position?
Candidate's Resume
Job Posting (including job title, duties and requirements)
Position Location (State and Zip code)
Have more questions? Reach out to us at support@waylit.com and we'll be happy to answer them.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.
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