Theresa Johnson
Compensation
Final Paper
Compensation As it Relates Foreign Nationals Compensation and all that it entails can be pretty complicated. This is even more the case when the job offer is made to a candidate that is working under an H1B Visa, and/or seeking a Green Card through the employment relationship. Not only, can this be a complicated and somewhat drawn out process, it’s also very, very expensive cost to the business that will sponsoring the candidate. Also there are many hoops to jump through when it comes to the Department of Labor’s and Department of Homeland Securities involvement in the process. I will attempt to provide you with insight as to how the process works from start to finish. After, and only after, a job is offered and accepted by an alien, the process of obtaining H-1B visa status can begin. One can apply for H1B visa/status six months prior to the commencement of the petitioned employment, but no earlier. For example, if an employer knows they will have a certain opening approximately six months out, and they have a pre-chosen candidate, the process can begin based on this assumption. It is important to apply for the visa as early as possible (for the time being, this means as early as 6 months before your start date) due to the fact that the H-1B quota is currently being used up very quickly. There is only a pre-determined amount of ‘spots’, (visas) available, and it works kind of like a lottery. Given the constraint on the H-1B quota, it is always best for employers or HR professionals to expedite the recruitment process and sometimes push the starting date of employment forward. The H-1B visa is a ‘non-immigrant’ visa, meaning it’s utilized for individuals that just want to ‘work’ in the USA, not necessarily ‘live’ here permanently. A visa is designed to allow U.S. employers to recruit & employ foreign professionals, without a permanent green card. The visa is most often utilized in very specialized occupations, and generally for only a specified period of time.
The H-1B program gives foreign workers in specialized job roles, the opportunity to legally live and work in the US for a total of 6 consecutive years, and entitles their spouse and children (under the age of 21) to accompany them and legally live in the USA on what is called an H-4 visa. The spouse and/or children however would have to obtain their own work H1B visa for working.
There are some stipulations on which foreign workers are admitted to the U.S. I believe this is a good rule, because we should always ensure that every American has a job before we place a foreign worker into an American job. Foreign workers being considered for H-1Bs must possess at least a bachelor's degree or its equivalent. Occupations that qualify for H-1B visas typically require highly specialized knowledge in a field including, but not limited to: IT, Architecture, Engineering, Mathematics, Physical Scientific Research, Social Science, Biotechnology, HealthCare/Medicine, Education, Law, Accounting, Business, Theology, Arts, Computing, Finance, Accounting, Banking, Marketing, Sales, Recruiting, and Telecommunication.
In addition to the requirement that the position must be a specialty occupation, the employer must first file a Labor Condition Application (LCA) with the Department of Labor. An employer filed LCA attests that the H-1B visa worker is being paid, at minimum, the prevailing wage for the work being performed, and that employment of a foreign worker will not adversely affect the conditions of similarly employed U.S. workers.
The initial H-1B visa may be issued for up to three years. If necessary, it may be extended in the first instance for up to two years, and later on for one year. The maximum is six consecutive years. In some cases, the H-1B visa can be extended beyond the 6 year limit. The H-1B visa can also ‘recapture’ time spent abroad while in H-1B status. If an alien opts to recapture time abroad, then periods of time spent not in the U.S. will not count against the 6 year limit of the H-1B visa. I have been involved in H-1B cases that were taking too long to process, wherein the foreign worker had to return to their home country, or really anywhere besides the U.S. to buy us some time. It truly is a lot of dates and deadlines to keep track of.
Employers may also decide to provide sponsorship to an alien in the form of assisting them with obtaining a green card. This is an expensive investment on the part of the employer as the average cost is in the neighborhood of $50,000.00. One of the important privileges of an
H-1B visa, as opposed to many other non-immigrant type visas, is that it is considered a ‘dual intent’ visa. Quite simply, while working under the terms of an H-1B visa, the alien employee can also apply for a Green Card. If a green card is obtained, the alien will become a permanent resident, and the H-1B visa will not be denied or invalidated.
If an employer is willing, able, and can afford it, the employer can sponsor a foreign employee in H-1B status for a green card application. The H-1B status gives the alien the advantage of applying for permanent citizenship as well. This visa is valuable for highly specialized employees who are willing to relocate permanently and work in the U.S.

One important point to note is that once an employer has brought a foreign worker to the U.S. on the basis of an H-1B visa, if the company should decide to dismiss the worker before the expiration of the visa, the company is then responsible for any travel costs that the worker possibly incurs returning back to his/her place of foreign residence. It’s very important that the employer have a good idea that this worker will be dedicated, and stay put, at their company to avoid these potential costs. This provision is dependent upon dismissal and is not relevant if a worker chooses to resign. The employer is only responsible for the costs incurred by the exiting employee, not the costs associated with moving their wife, children, or other family members.
If I had to venture a guess, I believe most workers currently under H-1B status are looking to, at some point, receiving their green card. A green card gives an individual the right to live and work anywhere in the U.S., to leave and re-enter the U.S. at any time, and the opportunity to become a U.S. citizen.
There are several ways for an alien to obtain a green card or become a permanent resident of the U.S. These include through family, meaning the alien marries a legal U.S. citizen, thus making them a U.S. citizen. For those who do not qualify through a family relationship, a green card can also be obtained through the place of employment that is currently sponsoring their H-1B work which is making significant investments.
It is becoming more common for employers to sponsor aliens that are considered ‘priority workers’. These are people who possess work skills and knowledge that are considered in short supply and/or are especially needed in the U.S. Priority workers include people with extraordinary ability, outstanding researchers and professors, and multinational executives and managers.

Employment petitions require a job offer and require that the employer petitioning for the worker. Most employers petition for an employee using Form I-140, Petition for Alien Worker.
PERM is the process for obtaining labor certification, and is also the first step of the green card process for foreign nationals seeking permanent residence through their employment. To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position. The employer must be prepared to hire the foreign worker on a full-time and permanent basis. There must be a bona fide job opening available to U.S. workers, as well as the alien. PERM processing times will vary from 8-14 months.
Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker’s qualifications. In other words, the employer must establish that the job opportunity has been described without the use of unduly restrictive job requirements, unless it can demonstrate that they arise out of business necessity. Writing the job summary for the Department of Labor can be somewhat difficult, because it can’t be written so that only the one candidate would appear to qualify for the job, but also not so vague as to have multiple qualified applicants – if in fact it’s the foreign national the employer wants for the job.
The employer must pay at least the prevailing wage for the occupation in the area of intended employment, which could potentially be much higher then the budgeted salary amount currently being paid for the same role, or higher than those workers already in the position. The prevailing wage will be determined by the Department of Labor based on the job summary/job description that the employer provides to them.

There are many specific steps that need to be adhered to in order to sponsor a foreign national for their green card. It’s a very lengthy, expensive process and one that shouldn’t be taken lightly. The potential, financial pitfalls are very great. The main thing to keep in mind when the decision is being made to sponsor for a green card, is that once the alien has obtained this, they can leave your company and work anywhere they want. The employer has no legal claim to the person just because they sponsored and paid for their green card.

Works Cited

www.hooyou.com
Corporate Legal Team at Charter Communications www.usavisanow.com www.h1base.com www.usimmigrationadvisor.com