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H-1B Employment Started October 1

It’s been a long wait from April 1 to October 1, but as of the first day of this month, those lucky 80,000 foreign nationals whose H-1B petitions were selected in the lottery became eligible to take up their employment with their U.S. employers.  Now that the H-1B employment has begun, employees and companies should take care to fulfill a number of responsibilities to make sure they are in compliance with the H-1B

Employers’ Responsibilities

The most important responsibility for the employer is making sure that all H-1B employees have completed I-9s on file with the employer’s place of business.  The I-9 contains biographic and work authorization information for each employee and is required for each employee, regardless of nationality or citizenship status.

The second-most important responsibility is maintaining the Public Access File (PAF). Each H-1B employee must have a Public Access File that contains specific information and documentation, such as a copy of the certified Labor Conditions Application that was filed with the U.S. Department of Labor, the source for the H-1B position’s prevailing wage, and a summary of the benefits offered to U.S. and H-1B workers.  The PAF should be readily accessible should USCIS visit the employer’s place of business in order to conduct a site visit.

It is also important to point out that should the H-1B employment terminate before the requested end-date on the approved H-1B petition, the U.S. employer is responsible for the reasonable costs of transportation for the employee’s trip back home.

Employees’ Responsibilities

If the employee hasn’t already done so, he or she must obtain a social security number from the Social Security Administration.  Additionally, if the employee has dependents, including a spouse and children under the age of 21, the employee should make sure that the dependents have valid H-4 status.  Most importantly, the employee should make sure that the dependents’ status is valid for the same amount of time as the employee’s own H-1B status.  The easiest way to confirm the status duration is to compare the I-94 records issued by USCIS (if the person changed status while physically in the U.S.) or the I-94 records issued by Customs and Border Patrol (if the person entered the U.S. with a visa).

Sometimes a government agency will shorten an I-94 record because the person’s passport is expiring before the end-date listed on the approved visa petition.  But sometimes the agency officer simply makes a mistake.  Mistakes on I-94 records can be corrected but should be identified and fixed as soon as possible to ensure there are no interruptions in immigration authorization.

Planning for Future Immigration Options

Both H-1B employers and employees are encouraged to plan for future immigration opportunities, primarily with regard to planning for a green card.  Green card processing can take a year or more to complete, so it is best to get started as soon as possible.  Additionally, a foreign national may only be in the U.S. with H-1B status for a maximum of six years unless certain steps in the green card process have already been accomplished.  Planning ahead can help ensure there are no interruptions in work authorization.

Additional Blog Posts

The Possible Impact of Sequestration for Employers and Immigrant Workers, ImmigRantings, April 22, 2013

More States Expected to Exert Control Regarding Illegal Immigration Problems, ImmigRantings, August 3, 2013