ABCs
of Immigration: 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.
Is
there a limit on the number of H-1B aliens?
Yes.
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.
There are some types of jobs that are exempt from the H-1B cap and these are
discussed below.
The
number of H-1B visas for FY2004 was reached on the very first day of the fiscal
year. Petitions for positions starting on or after October 1, 2005 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 2005.
Who
is actually subject to the cap?
Not every
H-1B applicant is subject to the cap. Visas will still be available for
applicants filing for amendments, 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. Physicians taking jobs under State 30 or federal government
agency waivers based on serving underserved communities are exempt from the
H-1B cap.
What
are the advantages to applying for an H-1B?
One of
the things that makes this visa so desirable is that, unlike many other
nonimmigrant visa categories, it is a “dual intent” visa. This means 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. Thus, assuming the applicant meets all of the statutory
requirements for the H-1B visa, the main reason it would be denied is if the
consular officer feels there is good reason to believe the applicant will not
comply with the terms of the visa (such as having a history of failing to
comply with the terms of a visa).
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.
How
does one apply?
In an
H-1B visa application, the US employer is called the petitioner and the foreign worker is called the
beneficiary. After an offer of employment is made, the petition process begins.
The first step is for the petitioner to ensure that the worker will be paid at
least 95% of the prevailing 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.
The benefit of relying on a state wage determination is that it cannot be
challenged later by the US Department of Labor. On the other hand, state
determinations are frequently not a close match to the job performed and are
slow in being issued.
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 by the web or by fax and the
Department of Labor only reviews the form to make sure it is properly
completed. It does not look to see whether the information is accurate and
instead investigates a small percentage of cases where violations of the
regulations appear to be occurring.
(For more
information, see 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. Other information that should be included in USCIS petition includes
documentation of the beneficiary’s qualifications, the petitioner’s type of
business, and the type of work the beneficiary will be performing. Each of
these will be further detailed below.
Additionally,
the employer must send an accompanying fee of $130. (Prior to FY2004, employers
were required to submit an additional $1,000 fee to sponsor the H-1B worker,
unless specifically exempt. This requirement sunset on October 1, 2003 , but there is a possibility that
the fee may be reinstated in the future.) Based on USCIS petition approval, the
alien may apply for the H-1B visa, admission, or a change of nonimmigrant
status.
For more
information on the application process, see our H-1B flow chart at http://www.visalaw.com/02dec1/H1B.pdf.
What
is the purpose of the LCA?
The LCA
serves two related purposes: (1) ensuring that US wages are not depressed by
the hiring of foreign labor and (2) 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. These
attestations are as follows:
·
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
·
The employment
of H-1B workers will not adversely effect the working conditions of US workers
·
When the LCA was
filed, there was no strike, lockout or other work stoppage because of a labor
dispute
·
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.
Beginning
in 1998, some new requirements were added to the LCA process. However, these
requirements apply only to “H-1B dependent” employers, a concept also created
in 1998. These requirements sunset on October 1, 2003 , were restored in late 2004.
Whether an employer is H-1B dependent depends on the following guidelines:
·
If the
employer has over 50 employees, the employer is H-1B dependent if at least 15%
of the workforce is comprised of H-1B visa holders
·
If the
employer has 26-50 employees, the employer is H-1B dependent if it employs more
than 12 H-1B workers
·
If the
employer has 25 or fewer employees, the employer is H-1B dependent if it
employs more than seven H-1B workers
While in
most cases the new requirements apply only to H-1B dependent employers, they
also apply to employers who have been found to have committed a willful failure
or misrepresentation with regard to any attestation made on the LCA. If the
employer is H-1B dependent, it must comply with these requirements:
·
The employer
must attest (swear under oath) that it has not and will not “displace” a US worker during the period from 90 days before the H-1B
petition is filed until 90 days after it has been filed.
·
The employer
must attest that it has taken “good faith steps” to recruit US workers for the
job, and that they have offered it to any US worker
who applied that was at least as qualified as the H-1B nonimmigrant.)
What
is the next action after filing the LCA?
Obtaining
an LCA is only the first step in the H-1B process. The application for an H-1B
visa must present evidence that will convince USCIS of three basic truths:
·
The employer
has a legitimate need for a “specialty occupation worker”
·
The position
offered is in a “specialty occupation”
·
The
prospective employee is qualified for the position.
1. The
employer’s need
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
and payroll records. Court decisions have, in the past, said USCIS is not
supposed to examine the financial background of a company. However, USCIS
routinely asks for such documentation even for many large employers.
2. The
nature of the position
Demonstrating
that a position is in a specialty occupation is quite easy with some jobs, such
as lawyers, accountants, engineers and professors. With many positions,
however, it is not so simple. 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.
In cases
where the specialty nature of the position is not evident, many types of
evidence may be used. Trade and association publications may be presented.
Petitioners may also procure affidavits from authorities in the field. Such an
affidavit would be especially useful if written by someone who has personally
observed the workplace and the position’s role in it. One of the best types of
evidence is the employer’s own hiring practice in hiring for the position.
Evidence of the minimum qualifications required for positions below that for
which an H-1B worker is sought can also be helpful, especially if such people
are required to have a university degree.
If the
occupation is little known or is relatively new, extensive documentation will
be required to convince USCIS of the need for an H-1B worker. In these cases
appropriate evidence would include affidavits from other employers in the field
and professional organizations in the field.
3. The
alien’s qualifications
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. If the relevance of the subjects studied is not
apparent, course descriptions from the school catalog may be included. If the
alien did not attend school in the US , their degree must be evaluated by a credentials
evaluation service to ensure it is at least equal to a US bachelor’s degree. Note that if
the alien attended college abroad, and then obtained an advanced degree in the
US , no evaluation of
their undergraduate degree is required because it is presumed that the US
graduate institution would
not have admitted the student without at least possessing the equivalent of a
bachelor’s degree.
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.
If there
are any additional requirements that the alien must meet to take the position
offered, documentation that these requirements are met must be submitted. An
example would be when a license is required by the state in which the alien
will be working.
How
long can an alien be in H-1B status?
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, that 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.
For
whom can an H-1B non-immigrant work?
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.
H-1B
employees may apply for a change of status from one employer to another. The
application process is fairly similar to applying for a brand new H-1B except
that the process can be completed in the US without a trip abroad to a US consulate.
How
does an H-1B non-immigrant change or add an employer?
One of
the easiest ways for an H-1B visa holder to run into trouble with his or her
visa status is to fail to comply with immigration regulations when switching
employers or changing the terms of his or her employment.
The most
difficult problems are often created when someone changes jobs without taking
care of immigration issues. In fields like computer programming or physical
therapy, it is not unusual for an individual to move frequently from employer
to employer. But for an H-1B visa holder, each change can present challenges.
The first
basic rule to note is that an H-1B is employer specific. In other words, it is
only valid for the petitioning employer and only entitles the recipient to work
for the employer approved by USCIS. That means that each time a worker moves to
a new employer, a new H-1B approval is required. It is possible to apply for a
change of status to switch employers from the US without having to leave and get a new visa stamp,
however. But it is important to remember that the process involved will be
pretty similar to getting an H-1B visa from scratch.
At one
time, it was thought that changing H-1B employers meant that a new visa stamp
would be needed the next time someone leaves and reenters after a change of
status in the US. USCIS and the State Department now make it clear that as long
as the visa remains unexpired the applicant remains in H-1B classification.
Note that someone who changed from another visa to H-1B status in the US
(such as from F-1 to H-1B)
and never has had a visa stamp will still need to get an H-1B visa at a
consulate.
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 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 news
here is good. 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.
What
if several employers file H-1Bs for the same worker?
Let’s say
that two employers successfully file an H-1B and the worker enters to work for
Company 1. After coming here, the worker decides to go work for Company 2
instead. Even if the worker never worked before for Company 2, the worker can
switch to Company 2 without the need for a new petition. As noted above, a revocation
of the petition by Company 2 or the expiration of the visa approval period for
Company 2 would mean a new petition is required.
What
about the case where an employee accepts a job with a second employer without
giving up the first position?
There is
no legal reason why this cannot take place. An H-1B worker can work for several
employers simultaneously if desired. However, each employer must have a
separate approval for the worker to work there. Also, USCIS does not recognize
“co-employer” arrangements, so if this is the case either one employer must
designate itself as the petitioner, or each employer must file a separate
petition.
There are
many times when a change in the nature of one’s employment will trigger the
need to file either an amendment to an H-1B petition or a completely new
petition. USCIS position is that if the change in employment is “material” then
an amendment must be filed. So, for example, if there is a significant change
in job duties, then a new petition will probably be necessary. Also, being
transferred to a different legal entity within the same corporation would
trigger an amendment. Also, in certain cases, changing job locations could
require an amendment.
Mere
changes in job titles without a serious change in job duties will probably not
require an amendment. The same holds true for raises in salary unless the
change is so great that USCIS presumes that the position is really a new one.
Note that
changes in the corporate structure of a company could mean that a new H-1B
petition must be filed. The general rule is that if a new legal entity is
created, a new petition is required. This would be the case, for example, if a
company is sold and the new company dissolves the old company without assuming
its liabilities. A merger that results in the creation of a new company might
also mean that new petitions should be filed. If the new company is what in
corporate law is called a "successor in interest" then a new petition
is normally not necessary. Changes in a company’s name will not trigger the
need for an amendment or to refile, but an amendment is useful in order to
avoid confusion when the worker reenters the country later on.
Must
an H-1B alien be working at all times?
As long
as the employer/employee relationship exists, an H-1B alien is still in status.
An H-1B alien may work in full or part-time employment and remain in status. An
H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike,
or otherwise inactive without affecting his or her status.
Can
an H-1B alien travel outside the US ?
Yes. An
immigrant with H-1B status may reenter the US during the validity period of the visa and approved
petition.
What
are the filing fees associated with an H-1B visa?
There are four government filing fees that come up in H-1B
cases. First, the base filing fee for an H-1B case is applicable in every case.
As of publication of this article, that fee is $185.
In late 2004, Congress passed legislation restoring a
worker retraining fee. The previously applicable worker retraining fee was
reinstated and increased from $1000 to $1500. Employers with less than 25
full-time equivalent employees in the
The
following categories of employers and employees are exempt from the H-1B
retraining fee:
·
The employer
is an institution of higher education as defined in the Higher Education
Act of 1965; or
·
The employer
is a nonprofit organization or entity related to, or affiliated with an
institution of higher education; or
·
The employer
is a nonprofit research organization or governmental research organization, that
is primarily engaged in basic research and/or applied research; or
·
This petition
is the second or subsequent request for an extension of stay filed by the
employer regardless of when the first extension of stay was filed or whether
the $1,000 filing fee was paid on the initial petition or the first extension
of stay; This petition is an amended petition that does not contain any
requests for extension of stay filed by the employer; or
·
This petition
is to correct an Immigration and Naturalization Service error; or
·
The employer
is a primary or secondary education institute; or
·
The employer
is a nonprofit entity which engages in an established curriculum-related
clinical training or students register at the institution.
Applicants
seeking faster processing can pay a $1000 premium processing fee to be
guaranteed an answer within 15 days.
Finally,
on March 8, 2005 , a
new $500 fraud prevention and detection came into force