Should I get an H1B?

Before making an H-1B application, an H-1B dependent employer must make “good faith” attempts to recruit resident U.S. workers using “procedures that meet industry-wide standards” and “offering compensation at least as great as that offered to the H-1B alien”.

Given the wide variety of recruitment methods used in different industries, this provision is likely to cause confusion both for USCIS and employers. For example, Internet advertising might be in “good faith” and “meet industry-wide standards” for the IT sector, but would it for the engineering industry? This is a matter that will demand careful consideration on the part of H-1B dependent employers.

It is worth noting, however, that the recruitment attestation described above is not required by H-1B dependent employers seeking to employ aliens with Master’s (or higher) Degrees, or those earning in excess of US$60,000.

Non H-1B dependent employers are not required to make such an attestation in any event.

Any US employer can sponsor an H-1B petition, provided it has an IRS Tax Number (also known as an IRS Number or Tax ID Number). This number is needed for obtaining approval of the Labor Condition Application (LCA), which is an essential preliminary to the H-1B petition itself. However, employers should take note that sponsoring an H-1B petition involves them making a number of undertakings, enforceable by heavy civil and criminal penalties. These undertakings are:

  • To pay the H-1B worker at least the higher of the wage paid to similar workers in the same company or the “prevailing wage” (usually determined by the relevant State Employment Services Agency) for the occupation in the area the worker will be employed;
  • That the recruitment of the H-1B worker(s) will not adversely affect the conditions of the employer’s US-resident employees in similar jobs;
  • That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H-1B aliens to be employed at the site of any subsequent strike or lockout;
  • That a copy of the LCA form will be given to the H-1B worker, and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in two conspicuous locations for at least ten days in the place the H-1B alien will be working;
  • To maintain records of the LCA and the H-1B alien’s employment for inspection by the US Department of Labor.

Note that the prevailing wage is generally lower for non-profit and academic/research organizations.