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  1. #1
    Join Date
    May 2007
    Posts
    21

    Question H-1b Transfer and Prevailing Wage Information

    Hi,

    My lead programmer is based out of Egypt and I've been working with him since 2012. He would like to come to the USA with his wife and work in the USA.

    1. I'm sponsoring him under my LLC and I see I have to go through the LCA process where I have to pay my developer the "prevailing wage" for his current position; which is a "Senior Web Developer".

    I currently pay my developer hourly; which doesn't come out to a large yearly salary, since the cost of living in Egypt is much lower than it is in the USA. Based on his current "Senior Web Developer" position, I know the salary for these type of positions in the USA can easily range from $75K - $110K /year.

    Will this be an issue for the H-1B petition? Would I have to list him at a "Junior Developer" position, which gets paid a lot less? By doing this, would this effect him in anyway when he goes to look for a "full-time" job or can he still show on his resume that he's a "Senior Web Developer"?

    2. I was looking into how the "H-1B transfer" works, if he has an approved H-1B and is currently working "part-time" for my company when his new employer files this "H-1B transfer" does it have to go through the 65,000 cap again? Also, can the new employer file this "H-1B transfer" anytime they want or does it have to be filed on April 1st again?

    Once my developer goes through this "H-1B transfer" process, can he still work "part-time" for me? I read online that this "H-1B transfer" is like submitting a new petition and my developer would then have a "concurrent H-1B" to work with 2 employers but I'm not sure if this is accurate.

    Thank you!

  2. #2
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: H-1b Transfer and Prevailing Wage Information

    Prevailing wage has nothing to do with what you pay your other workers. It has to do with the prevailing wages in your industry. If you want to hire your programmer and pay him a substandard wage, he can continue to telecommute from Egypt.

    The lower the pay and the fewer the responsibilities associated with the position, the more dubious the notion that you need to fill the position with a H1B holder as opposed to being able to hire a citizen.

    You are not free to hire a full-time H1B worker and then to cut his hours to part-time. If you certify this person for a full-time job, you must pay that person a full-time wage unless there are reasons unrelated to employment why the employee is not able to work (e.g., he's too sick to work). A full-time week is presumed to be 40 hours unless you prove a different standard for your industry, and in no circumstances will work of less than 35 hours per week be deemed full-time.

    If you file to hire a part-time worker, your I-129 will reflect the range of hours for which you are looking to hire an employee and, subject to the same qualification about inability to work, you must pay the employee each week for not less than the minimum number of hours specified on your I-129.

    An H1B transfer refers only to the ability to change jobs without leaving the U.S., and otherwise involves the same qualification and application process as with any other H1B application. It is unlikely that another qualifying employer is going to be interested in absorbing the cost of the H1B application process for a part-time worker, even if we assume that the DOL would approve a range of hours consistent with that idea.

  3. #3
    Join Date
    May 2007
    Posts
    21

    Default Re: H-1b Transfer and Prevailing Wage Information

    Hi,

    Thank you for the reply!

    1. I came across the following website; since I'm only hiring "part-time (20/hrs week)", I can use the "Web Developer (Level 1)" position for this H1B process and state 20 /hrs week on the I-129?

    Camden, NJ:
    http://www.flcdatacenter.com/OesQuic...ar=17&source=1

    2. Ok, so if I hire him based on a "part-time" position with the H1B petition I submit; if a new employer wants to hire him they can't submit their H1B petition hiring him as a "full-time" employee? They can only hire him as a "part-time" employee due to the H1B petition I submitted?

    Thank you, again!

  4. #4
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: H-1b Transfer and Prevailing Wage Information

    You are free to try, but I am skeptical that you'll be able to document a labor shortage for low-skilled, part-time web developers. As has already been suggested, your plan to lie about this person's role and skill set is not a good idea.

    As you have already been told, any new employer's labor certification and H1B application would be entirely independent of yours. You're not going to be able to handcuff this employee to a low-wage part-time job if he finds a better job elsewhere.

  5. #5
    Join Date
    May 2007
    Posts
    21

    Default Re: H-1b Transfer and Prevailing Wage Information

    Thank you for the quick reply!

    Yes, that's true. I wish I could hire him "full-time" in the USA but my business is not at that level yet. I've known him for a long time, he has worked on my site since day 1, so I consider him more as a friend than an employee; so if I can help him in anyway to better his life for his family by providing him with a "part-time" job in the USA I'm willing to look into this and hopefully in the future as my business grows I can then hire him as a "full-time" employee once I can afford his USA salary.

    Thank you!

  6. #6
    Join Date
    Sep 2010
    Posts
    19,901

    Default Re: H-1b Transfer and Prevailing Wage Information

    You misunderstand the part about the H-1B. It's not so you can hire foreign workers at substandard wages because you can't afford american workers. While it may indeed help the foreign worker, it's technically a non-immigrant visa (even though it can lead to resident status).

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