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A The H-1B
program is the primary method for bringing in professional
level foreign employees for thousands of American employers.
The visa has been the subject of considerable media
attention in recent years because Congress has set limits on
the numbers of workers allowed in on H-1B visas.
What is an H-1B visa?
The H-1B is a nonimmigrant classification used by an alien
who will be employed temporarily in a specialty occupation
or as a fashion model of distinguished merit and ability.
What is a specialty occupation?
A specialty occupation requires theoretical and practical
application of a body of specialized knowledge along with at
least a bachelor’s degree or its equivalent. For example,
architecture, engineering, mathematics, physical sciences,
social sciences, medicine and health, education, business
specialties, accounting, law, theology, and the arts are
specialty occupations.
How many individuals are granted H-1B status each year?
Under current law, there is an annual limit of 65,000 aliens
who may be issued a visa or otherwise provided H-1B status.
Under the “L–1 Visa and H–1B Visa Reform Act of 2004”,
beginning March 8, 2005, up to 20,000 additional H-1B slots
are available to graduates of US masters degree (or higher)
programs.
The number of H-1B visas for FY2004 was reached on the very
first day of the fiscal year and visas for FY2005 are also
unavailable. Petitions for positions starting on or after
October 1, 2006 may be submitted up to 180 days ahead of the
requested start date. In other words, applications for the
next quota of H-1B visas (excluding the new 20,000 slots for
graduates of US educational programs) will be accepted
beginning in April 2006.
Who is subject to the cap?
Fortunately, not every H-1B applicant is subject to the cap.
Visas will still be available for applicants filing for
extensions and transfers. The cap also does not apply to
applicants filing H-1B visas through institutions of higher
education, nonprofit research organizations, and government
research organizations. Additionally, physicians offered
positions under State 30 or federal government agency
waivers based on serving underserved communities are exempt
from the H-1B cap.
Are there advantages to the H-1B Program?
Yes. One of the major advantages is that, unlike many other
nonimmigrant visa categories, it is a “dual intent” visa.
What this means is that a visa will not be denied simply
because an individual has intentions to become a permanent
resident. The assumption is that if for some reason the
permanent residency petition is denied, the person would
still have the intention to return home. Another advantage
to the H-1B category is that the employer does not need to
demonstrate that there is a shortage of qualified US workers
and, consequently, a labor certification process can be
avoided. Aside from documenting that the position offered is
in a specialty occupation and that the employee has the
appropriate credentials for the job, the employer need only
verify that the H-1B worker is being paid the prevailing
wage for the work being performed and that employment of a
foreign worker is not harming conditions for US workers.
What is the application process?
In an H-1B visa application, the US employer, known as the
petitioner, makes an offer of employment. The first step is
for the petitioner to ensure that the worker will be paid
100% of the prevailing wage, which is a wage paid to
similarly employed workers in the geographic area where the
beneficiary will be employed. The employer must also be sure
that it is not paying less than the actual wage paid to its
other employees with similar qualifications. The prevailing
wage can be determined through a private wage survey or
through a state Employment Security Agency.
Once the wage information has been obtained, a Form ETA 9035
Labor Condition Application (LCA) must be submitted to the
US Department of Labor. On this form, the employer must
submit the wage to be paid, the prevailing wage, and must
make certain attestations. The form is submitted
electronically and the Department of Labor only reviews the
form to make sure it is properly completed. (For your
convenience we have provided a link to the Department of
Labor’s Foreign Labor Certification web page at
http://workforcesecurity.doleta.gov/foreign/.)
The certified LCA petition is submitted to USCIS as part of
the H-1B petition package.
Why must an LCA be filed?
The purpose of the LCA is to ensure that US wages are not
depressed by the hiring of foreign labor and that foreign
workers are not exploited. On this document, the employer
makes specific representations regarding the conditions
under which the foreign worker was hired and will be
employed including:
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The employer
will pay the required wage, which is the greater of the
prevailing wage or the actual wage paid to other
employees in the same position.
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The
employment of H-1B workers will not adversely effect the
working conditions of US workers
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When the LCA
was filed, there was no strike, lockout or other work
stoppage because of a labor dispute
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The H-1B
worker will be given a copy of the LCA, and the employer
has notified the bargaining representative if the job is
unionized, or if not, has posted in a conspicuous place
notice that an LCA was filed.
Within one
business day of filing the LCA, the employer must establish
a public access file that may be viewed by any person. This
file must include a copy of the LCA, a statement of the
actual wage received by the H-1B worker, the prevailing
wage, including its source, whether the state or a private
survey is used, a memo from the employer explaining the
actual wage determination, and evidence that the LCA has
been filed.
In addition, the employer must keep other information that
need not be made available to the public. This includes
payroll data for all employees in the same occupations as
the H-1B worker, a calculation of the actual wage paid the
H-1B worker, the raw data behind the prevailing wage
determination, documentation of any fringe benefits provided
workers, and evidence that the H-1B worker has been given a
copy of the LCA. Once approved, an LCA is valid for three
years.
What is the next step?
The H-1B visa petition must be filed with the USCIS
demonstrating the following:
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The
employer’s bona fide need for an H-1B specialty worker
- This is often the easiest aspect of an H-1B petition
to demonstrate. As a general rule large and well-known
businesses do not have much difficulty in showing they
have a need for an H-1B worker. Problems can be
encountered if the employer is small, or if the business
was recently started. In such cases USCIS has requested
evidence relating to the stability of the business such
as tax returns , payroll records and other evidence of
the company’s bona fide business activities.
-
The
Position Must Actually Be a Specialty Occupation -
Demonstrating that a position is in a specialty
occupation is quite easy with some jobs, such as
engineers and physicians. With many positions, however,
it is not as straight forward. In these situations, the
application must carefully define and describe the job.
Two volumes published by the Department of Labor are
helpful in this area. They are the Dictionary of
Occupational Titles and the Occupational Outlook
Handbook. The Dictionary of Occupational Titles contains
a list of job titles and lists job duties that are
associated with each. The Occupational Outlook Handbook
lists general educational requirements for entry into
certain areas of employment, but often it deals with
such broad fields that it is of limited usefulness.
While the books are helpful in documenting a case,
neither is binding on USCIS and the use of the
publication should always be used with caution. Also,
the O*Net database provided by the Department of Labor
provides helpful information in documenting a position
is a specialty occupation.
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The H-1B
Candidate Qualifies For the Job Offered - To qualify
as a specialty occupation, the position must require at
least a bachelor’s degree or its equivalent. Therefore,
one of the most important parts of an H-1B case is
documenting the alien’s education and/or experience. A
diploma may be submitted if it indicates the alien’s
field of study and that field is relevant to the
position sought. If this is not the case, transcripts
should also be submitted.
While possession
of a degree is the most common way of establishing a
person’s ability to work in a specialty occupation, a degree
is not required to obtain an H-1B visa. The applicant can
demonstrate through work experience or a combination of
education and experience that they have the equivalent of a
bachelor’s degree. If work experience will be used, USCIS
requires affidavits from former employers outlining the
alien’s responsibilities and skills learned while there.
Under USCIS rules, three years of work experience is equal
to one year in college.
Some positions require additional documented proof, such as
when the job requires state licensure.
What is the Duration of Stay?
Under current law, an alien can be in H-1B status for a
maximum period of six years at a time. After this time, an
alien must remain outside the United States for one year
before another H-1B petition can be approved. Certain aliens
working on Defense Department projects may remain in H-1B
status for 10 years. Additionally, certain aliens may extend
their status beyond the 6-year period in one year increments
if:
• 365 days or more have passed since the filing of any
application for labor certification, Form ETA 750 or ETA
9089 , that or ETA 9089 is required or used by the alien to
obtain status as an EB immigrant, or
• 365 days or more have passed since the filing of an EB
immigrant petition.
Is the H-1B employer specific?
Yes. H-1B aliens may only work for the petitioning US
employer and only in the H-1B activities described in the
petition. The petitioning US employer may place the H-1B
worker on the worksite of another employer if all applicable
rules (such as the Department of Labor rules) are followed.
H-1B aliens may work for more than one US employer, but must
have a Form I-129 petition approved by each employer.
What is ‘H-1B Portability’?
In October 2000, former President Clinton signed the
American Competitiveness in the Twenty-First Century Act
(AC21). One of the most sought after provisions in AC21 is
the “portability” provision, which eases the process of
changing jobs. Under it, H-1B workers can begin working for
a new employer as soon as the new employer files an H-1B
petition for the worker. In the past, the worker had to wait
for the petition to be approved before he could begin
working for the new employer. Because this provision applies
to petitions for new employment filed before or after the
enactment of AC21, workers for whom a new petition was filed
can begin work for the new employer immediately.
The primary limitation on this portability provision is that
the new employer must have filed a “non-frivolous” petition,
which is one with some basis in law and fact. To take
advantage of the portability provision, the worker must be
in the US pursuant to a lawful admission, and must not have
engaged in unauthorized employment since that admission.
The portability provision has created concern among
employers about how they will comply with I-9 requirements,
which obligate employers to ensure that all employees are
legally authorized to work in the US. While the worker who
begins working for a new employer after the filing of a new
petition is work authorized, the I-9 form contains no
provision for such a situation. Employers in this situation
should follow current documentation procedures, as well as
keeping a copy of the worker’s I-94 and a copy of the
receipt notice for the new H-1B petition.
How does the H-1B cap affect an immigrant who requests a
change in employers?
USCIS has stated that the limit on the number of H-1B visas
does not apply in this situation. However, if one leaves an
employer and waits more than 30 days to apply for a new H-1B
visa, the cap would apply again. Also, if one works for a
cap-exempt employer and then switches to an employer that is
not exempt from the cap, the cap will apply.
In the case of a concurrent filing of an H-1B application
where a person is working for an exempt employer and then
seeks additional employment with a non-exempt employer, the
cap will not apply to the second position.
What if you change employers and then decide to go back to
the first employer?
The H-1B petition continues to remain valid until it expires
or until the employer has it revoked. USCIS takes the
position that if neither of the above has occurred, one can
resume work for the first employer without filing a new
petition or an amendment.
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