The H-1B visa is designed for employers recruiting temporary workers whose positions require at least a bachelors degree in a specialty occupation. There is an annual cap of 65,000 H-1Bs that can be issued in a single fiscal year. In the five years since the cap has been in effect, the 65,000 cap has not been hit. In order to qualify for the H-1B visa, the following basic requirements need to be met:
1. The position must be in a specialty occupation. This is an occupation that requires the theoretical and practical application of highly specialized knowledge and requires at least a bachelor’s or higher degree in the specific occupation.
Some fields which normally require bachelors degrees include, but are not limited to, accounting, architecture, education, engineering, law, mathematics, medicine and health, physical sciences and social sciences.
2. The employer must actually need the services of a member of specialty occupation.
3. The alien must possess the credentials normally possessed by a person in the specialty occupation. The employer must document that the alien possesses one of the following:
- a degree from a US degree appropriate to the specialty occupation;
- a foreign degree equivalent to or higher than a US degree (an equivalency evaluation from an expert is normally necessary unless the alien also has a US degree in the field which would normally require the equivalent of a US bachelors degree as a prerequisite);
- an unrestricted state license, registration, or certificate allowing the alien the full right to practice in the specialty occupation;
- experience equivalent to a US degree may be acceptable if the applicant has at least three years of work experience in the appropriate area FOR EVERY YEAR of missing education. In other words, if an alien has three years of university education in the right field and three years of relevant work experience, the education experience will be met (a US bachelors degree normally takes four years to complete).
4. If a license is required by a state to practice in the specialty occupation, the alien has the necessary license. In some cases, the alien can be granted a shorter term visa if he or she possesses a temporary license.
5. The employer must agree to pay the return transportation costs if the employee is dismissed prior to expiration of the H-1B visa.
Before an employer can submit an H-1B application to the Immigration and Naturalization Service, the employer must file and receive approval on a labor condition application (“LCA”) with the US Department of Labor. The LCA must contain four attestations:
1) The H-1B nonimmigrant will be paid at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question OR the prevailing wage level for the occupation in the area of employment, WHICHEVER IS HIGHER.
The prevailing wage figure can normally be obtained from one of several sources: a determination from a state employment security agency (“SESA”) with jurisdiction over the place of intended employment, an independent authoritative source survey, or another legitimate source. SESA determinations are the most preferable since the US Department of Labor has indicated that it will normally not challenge such wage findings. Stricter standards are applied to other sources.
2) The employment of the H-1B nonimmigrant will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
3) There is no strike or other labor dispute at the place of employment.
4) A copy of the application has been provided to each H-1B worker employed pursuant to the LCA and the employer has provided notice of the LCA to the bargaining representative of the workers in the occupation or, if there is no bargaining representative, the LCA has been posted for 10 days in at least two conspicuous locations where the LCA will be employed. New regulations impose complex requirements regarding posting where the employee will be working at sites other than where the petitioning employer is located.
The employer must make the LCA and supporting documents demonstrating compliance with the LCA rules in a public access file in the principal place of employment or actual place where the employee will be employed within one business day after the LCA is filed.
Failure to comply with the LCA regulations can result in the employer being forced to pay backwages to the H-1B worker as well as civil monetary penalties or other administrative penalties and, potentially, a bar on the employer sponsoring H-1B workers for a year
The US Department of Labor is statutorily required to process LCAs within seven working days of receiving the LCA. The employer then would be required to submit to the Immigration and Naturalization Service the LCA form along with its petition document, INS Nonimmigrant Visa Application, supporting documentation and filing fee. The Immigration and Naturalization Service is statutorily required to process the application within 30 days.
H-1B workers may stay in H-1B status for up to six years. After that time, the worker is required to remain out of the US for at least one year before being able to resume H-1B status. Also, the doctrine of “dual intent” applies to H-1B visas. This means, simply, that an H-1B applicant is permitted to seek permanent residence and still obtain an H-1B visa as well as visa reissuance and a visa extension. The H-1B applicant does not need to establish nonimmigrant intent.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.