An employer filing an H-1B petition must certify that the nonimmigrant employee is receiving a fair wage. An employer is required to calculate the "actual" wage and the "prevailing" wage to compare to the offered wage. The offered wage must be at least as much as the actual or prevailing wage (whichever is higher), or the petition will be denied.
The actual wage is determined by comparing the nonimmigrant's offered wage to the salaries of others in similar positions within the University. Education, experience, and background are all considered in determining similarly employed persons, and the nonimmigrant may not be offered less than another employee in the same position with the same qualifications.
The prevailing wage is determined by the Department of Labor based on the requirements of the position. A Prevailing Wage Determination Request Form is submitted online and includes the details of the position, such as where the nonimmigrant will physically work, what degree is required for the position, and what the specific job duties are. The Department of Labor reviews the requirements and assigns the position a title and code based on the Standard Occupational Classification System (SOC). The wage that corresponds with the code assigned is the prevailing wage. The processing time for this form varies greatly; it can take anywhere from 1 week to 3 months for DOL to return the form, based on their current workload.
The Labor Condition Agreement
The second step is to obtain an approved Labor Condition Agreement (LCA) from the Department of Labor. The LCA requires that we agree to certain employment conditions, which include:
(1) Wages: Pay the nonimmigrants at least the local prevailing wage or the employer's actual wage, whichever is higher, and pay for non-productive time. Offer nonimmigrants benefits on the same basis as offered to US workers.
(2) Working Conditions: Provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly employed.
(3) Strike, Lockout, or Work Stoppage: There is no strike, lockout, or work stoppage in the named occupation at the place of employment.
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 normally returned to the University in 1-2 weeks.
The Application to Immigration
Once the signed LCA is returned, an application for H-1B status may be filed with USCIS. 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:
The alien's complete CV or résumé.
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 stating that the alien has the Ph.D. does not suffice.
Copy of the alien's job contract or other written agreements.
If the alien is in the U.S., copies of his/her I-94 card and those of all dependents who accompany him/her; any I-20 copies (if previously in F-1 status); DS-2019 copies (if in J-1 status); or prior H-1B approval notices if appropriate.
Approval times for these petitions vary considerably, but normally fall within the 2-4 month range.
H-1B Application Fees
ISSS has a processing fee of $750 for all new H-1B applications. This fee is not required for extension requests of H-1Bs currently employed at ODU or for any positions funded through Old Dominion University Research Foundation. Please submit payment via IDT (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 ($325) and the anti-fraud fee ($500). (Note: the anti-fraud fee is not required for extension requests where the employee is continuing in the same position with the same employer). These two separate checks must be made out to "US Citizenship & Immigration Services." Submitting only these two checks means the application will go through regular processing (approximately four months).
Should the H-1B application you are submitting need to be processed in six to eight weeks, it is possible to request Premium Processing by issuing a third check for $1225, also made out to US Citizenship & Immigration Services . This may be paid by the employee, whereas the $325 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.