Hiring foreign talent through the H-1B visa program can significantly enhance your company’s success by bringing in skilled workers with specialized knowledge and expertise. However, the H-1B process can be complex, and making mistakes can jeopardize both the employee’s legal status and the company’s ability to hire foreign talent in the future. To ensure a smooth and successful H-1B sponsorship, here are some common mistakes U.S. employers should avoid:
1. Mistakes in the Job Description
One of the most frequent mistakes occurs right at the beginning the job description. It’s essential to remember that to qualify for an H-1B visa, the job must be considered a “specialty occupation,” which requires the role to demand at least a bachelor’s degree or higher in a specific field. Employers sometimes create overly narrow job descriptions that don’t reflect the actual requirements of the job or fail to clearly establish the necessary educational qualifications. Ensure the job description accurately matches the duties and the required academic background to meet H-1B criteria.
2. Errors When Filing the Labor Condition Application (LCA)
The Labor Condition Application (LCA) is a critical part of the H-1B process and must be filed with the U.S. Department of Labor (DOL) before submitting the actual H-1B petition. Employers often make mistakes by filing the LCA too early (it can’t be filed more than six months before the start date), or they may submit incomplete or incorrect information, such as inaccurate prevailing wage rates or incorrect work locations. Any errors in the LCA can cause delays or lead to denials of the H-1B petition, so it’s crucial to carefully complete this document.
3. Incomplete or Incorrect Filing Fees
Another common pitfall is submitting the petition with incorrect or incomplete filing fees. U.S. employers are required to pay specific fees when sponsoring an H-1B employee. These fees can vary based on factors such as the size of the company and the type of visa petition. Failing to submit the correct payment can result in delays, or the petition may be rejected outright. Make sure to verify the required fees and submit them with the H-1B petition to avoid any setbacks. For a detailed breakdown of these costs, refer to the H-1B filing fee guide.
4. Wage Issues
Employers must comply with specific wage requirements when hiring H-1B employees. The regulations mandate that H-1B workers must be paid the higher of either the actual wage paid to similar employees at the company or the prevailing wage for the occupation in the geographical area. Companies must also ensure that the employee receives their wages no later than 30 days after arriving in the U.S. on the H-1B visa (or 60 days after the visa’s validity date if the employee is already in the country on H-1B status). Failure to comply with these wage regulations can result in serious violations under immigration law. To avoid this, employers should conduct thorough wage surveys and make sure they are paying the correct wage levels for the role.
5. Failure to Keep Organized Documentation
Finally, maintaining organized and up-to-date documentation is essential for H-1B compliance. Employers must keep comprehensive records for each employee, including the LCA, the H-1B petition, job postings, resumes, and any communication with government agencies. If the company is ever audited or receives a Request for Evidence (RFE) from USCIS, having organized documentation can make responding much easier. Failing to maintain proper records can lead to penalties and potential violations of the H-1B program.
Conclusion
The H-1B visa program provides a unique opportunity to hire foreign talent, but the process is full of complexities. By avoiding these common mistakes — including issues with job descriptions, LCA filings, wage requirements, documentation, and filing fees — you can navigate the H-1B process more effectively and ensure compliance. Taking the time to carefully prepare and submit the necessary paperwork will help protect both your company and your foreign workers throughout the visa process.
