This post was authored by Megan R. Naughton, who is the  co-chair of the Robinson+Cole’s Immigration Group

Foreign nationals account for 61% of the full-time graduate students in civil engineering programs in the United States, according to the National Foundation for American Policy NFAP Policy Brief, August 2021, International Students in Science and Engineering. As a result, more and more clients in the construction industry are seeking to fill professional roles in their companies with talent that is foreign-born and requires employer sponsorship to work in the United States. Both small and large entities in the industry are looking into what is required of them to sponsor a foreign candidate for H-1B status. Once a current or future employee is identified who requires sponsorship, an employer is obligated to do the following:

Offer a “specialty occupation” role

Only roles which require at least a bachelor’s degree in a specific field (and related fields) are eligible for H-1B status. For instance, Civil Engineer and Concrete Engineer roles requiring bachelor’s degrees in Civil Engineering or a related field would be appropriate H-1B roles. A role that does not require a bachelor’s degree or its equivalent, or a role requiring too broad a range of fields or body of knowledge would not be suitable. For example, a Superintendent role which does not necessarily require a bachelor’s degree would not be an appropriate H-1B case. The position and its qualification for H-1B status should be reviewed in advance of filing an H-1B petition.

Offer the “prevailing wage”

The U.S. Department of Labor requires payment of the higher of the actual or the prevailing wage for each H-1B employee. The DOL wage is determined by the type of role, the seniority of the role, and the worksite location. In addition, the H-1B employee cannot be offered less than similarly-situated U.S. workers. A discussion regarding the required wage should occur prior to the H-1B lottery registration process.

Get selected in the H-1B lottery

For F-1 foreign students, employers must register them for the H-1B cap lottery in March of each year for a chance to win an H-1B cap number and eventually convert their status to H-1B. Registered individuals have a less than 50% chance of being selected every lottery season, so it is not a guarantee that a person will be selected the first time, or even the second time, they participate in the lottery. A discussion regarding timing should occur as a part of sponsorship. Those already in H-1B status would not typically need to go through the lottery to be sponsored and timing is not usually as much of an issue.

Post Notice, which includes salary information

Once the employer is ready to move forward with the H-1B petition, the employer must post a notice at the worksite or on-line which discloses the salary or a range that includes the salary, as well as other identifying information about the role.

File the H-1B petition

The H-1B petition involves many USCIS forms, cover and support letters, and a certified application from the DOL. The USCIS filing fees can range from $1,710 to $5,330 depending on the size of the employer, whether there are dependent family members to include, and whether USCIS premium processing is requested. Most of these fees must be paid by the employer. Once filed, the USCIS could ask for evidence corroborating the position’s requirements. Once approved, the USCIS could conduct site visits to ensure that the person is employed at the worksite indicated on the petition and is being paid the prevailing wage.

Notify USCIS when the person terminates

If employment is terminated, the employer must notify USCIS of the event (by letter) within a reasonable time.