The H-1B non-immigrant visa category enables U.S. employers to employ qualified foreign nationals ("aliens") in certain "specialty occupations". An H-1B petition, when approved by the U. S. Citizenship and Immigration Service ("CIS"), may be valid for an initial period of up to three years. An alien may normally maintain H-1B status only for a maximum of six consecutive years (see "extensions" below). This limitation is suspended for aliens whose H-1B presence is less than an aggregate of six months per year, or for those who commute to the U.S. to work. However time spent in the U.S. as an intra-company transferee ("L") status normally counts against the H-1B six-year limit. Efforts by H-1B non-immigrants ("H-1B's") to secure lawful U.S. permanent residence status ("green cards") are no longer considered to be a factor when assessing if an "intent to abandon" non-immigrant status exists. As long as their "H" status remains in effect, such individuals may maintain a "dual intent", a legal fiction created specifically by statute.
Threshold criteria: (1) does position offered qualify as a "specialty occupation", and (2) does the intended H-1B beneficiary meet the requirements for the position.
Specialty Occupation: A "specialty occupation" is defined by the U. S. Immigration and Nationality Act ("INA") as "an occupation that requires; (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor's or higher degree" (or their equivalent) in the specific specialty as a minimum for entry into the occupation. To establish a specialty occupation exists, CIS regulations require one or more of the following criteria to be met:
1. A bachelor's or higher degree or its equivalent is the minimum entry requirement for the position;
2. The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4.The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.
Academic Degrees: An advanced degree may be necessary to fulfill a minimum entry requirement for an occupation (e.g. physician, attorney, professor, etc.). Disciplines required for entry into some specialty occupations may vary (e.g. software engineer may be considered qualified with a degree in either computer science or math, etc.). The CIS will normally accept foreign degrees as equivalent to U.S. university degrees if they are certified as such by competent credential evaluators. Note: Many positions normally occupied by individuals with degrees in general or liberal arts fields of study will not be recognized by the USCIS as specialty occupations. (e.g. B.S. in general business administration is normally insufficient, but such a B.S. degree may qualify if a major focus of the curriculum was in a specific area such as accounting, marketing, or finance).
Experience in Lieu of a Degree: Experience, or combinations of education and experience-training, may qualify an alien for an H-1B specialty occupation provided it is deemed equivalent to a baccalaureate degree. Experience alone normally requires a showing the person's expertise was gained in "progressively responsible positions relating to the specialty." Equivalency is often be established by application of the "three-for-one" rule whereby three years of training or work experience can be substituted for one year of college education. Evidence of such equivalency may be in the form of: (a) an evaluation by a college official authorized to grant credit for training and/or experience; (b) a college-level equivalency examination or special credit programs; or © certification or accreditation by a nationally recognized professional association. Experience alone will not qualify an alien for positions which require masters or doctorate degrees. Equivalence to a master's degree may be accomplished only by possessing a bachelor's degree coupled with a minimum of five years experience in the specialty. If the position requires a doctorate, the alien must have a doctorate degree, or its foreign equivalent.
Licensure: The alien must possess a state license if one is required to practice the occupation in the state(s) of intended employment. An interim license or permit may suffice if it will permit the alien to commence work upon entry into the United States.
Numerical Limitations: The American Competitiveness in the Twenty-first Century Act of 2000 ("ACWIA") increased the annual allotment of H-1B visas to 195,000 for fiscal years 2001, 2002, and 2003. In 2004, the annual allotment decreased to 65,000. Some occupations and petitioners (institutions of higher education, etc.) are exempted from the annual allotment plus, since March 2005 an additional 20,000 H-1B's per year will be available to beneficiaries who have earned a master's degree or higher from a U.S. institution of higher education. In addition, nonimmigrants currently in the United States on a J-1 (exchange) visa who receive a waiver of the two-year residency requirement if requested by either a federal or state agency are now exempt from the H-1B cap. H-1B extensions, amendments, and transfers are not subject to the cap. Should an H-1B leave an exempt position they would become subject to the annual H-1B numerical limits.
Processing Fees: Before October 1, 2003, employers who used the H-1B program were required to pay an additional $1,000 fee imposed by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In part, that $1,000 fee paid for U.S. citizens, lawful permanent residents and other U.S. workers to attend job training and receive low-income scholarships or grants for mathematics, engineering or science enrichment courses administered by the National Science Foundation and the Department of Labor. Those ACWIA fee requirements sunset on October 1, 2003.
The H-1B provisions of the Omnibus Appropriations Act of 2004 reinstituted the ACWIA fee and raised it to $1,500. However, petitioners who employ no more than 25 full-time equivalent employees, including any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of petitions, that were previously exempt from the $1,000 fee, are still exempt from the new $1,500 and $750 fee.
In addition, the Act created a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary's initial grant of H-1B classification or those petitioners seeking to change a beneficiary's employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B employer, there are no exemptions from the $500 fee.
Each of these fees is in addition to the base processing fee of $190 to file a Petition for a Nonimmigrant Worker (Form I-129) and a fee of $1,000 for premium processing, if requested.
General Attestations: Employers are attesting in the Labor Condition Application ("LCA") filed with the U.S. Department of Labor ("DOL") that they are offering the intended H-1B beneficiary the higher of either; (1) the "actual wage" the employer pays to other individuals similarly employed with similar experience and qualifications; or (2) 100% of the "prevailing wage" for that position in the geographical area of intended employment "based on the best information available." The employer must determine both the prevailing wage and the actual wage in conformity with procedures established by DOL regulations. Employers also must affirm the working conditions for the H-1B worker(s) will not adversely affect the working conditions of other workers similarly employed; that there is no strike, lockout, or work stoppage in the course of a labor dispute; that the employer has given its employees notice of the filing of the LCA pursuant to the DOL required posting or a notice to the bargaining representative, when applicable; and that the employer has provided, or will provide, a copy of the LCA to the H-1B worker. The LCA must also disclose the wage rate offered, the prevailing wage, and the specific source from which the employer determined the prevailing wage rate.
Posting and Public Disclosure: Required notices must be posted by the employer within 30 days before the date the LCA is filed with the DOL and they must remain posted for a total of 10 days. Electronic posting of the LCA notice is permitted when notice to a bargaining representative is inapplicable. The employer must make copies of the LCA and related supporting documentation available for public examination.
Penalties: DOL regulations establish a complaint process for allegations of misrepresentation or failure to meet LCA conditions. Employers determined by DOL to be willful violators may be randomly investigated for five years. Penalties for violations include:
a. $35,000 fine and three-year prohibition for the willful failure to meet an attestation condition, or the willful misrepresentation of a material fact on an LCA, in the course of which failure or misrepresentation a U.S. worker is displaced during the period beginning 90 days before filing the application and lasting until 90 days after the filing of the petition.
b. $5,000 fine and two-year prohibition from filing immigrant and nonimmigrant petitions for willful failure to meet any attestation, or making a willful misrepresentation of a material fact in the LCA.
c. $1,000 fine and one-year prohibition from filing immigrant and nonimmigrant visa petitions for failure to meet strike or layoff attestation; substantial failure to meet working-condition attestation or displacement attestation, posting or recruitment attestations, or misrepresentation of material fact in LCA.
d. Some additional violations for which miscellaneous penalties are imposed include: (1) retaliating against a whistle blower is subject to a fine of up to $5,000 and the H-1B victim of such whistle blowing may be permitted by the CIS to continue to reside and work in the United States following retaliation by the employer; (2) $1,000 penalty if employer requires H-1B nonimmigrant to pay any penalty to the employer for leaving the H-1B position prior to a contracted date and the employer is required to return amount paid; (3) failure to pay full-time wages to a full-time H-1B employee or part-time wage rate to part-time employee (note: educational institutions may pay an annual salary over less than 12 months if that is their normal established practice), failure to pay a new H-1B employee within 30 days of admission to U. S., or failure to pay a new H-1B non-immigrant already present in the United States within 60 days of the date the non-immigrant becomes eligible to work for the employer, unless caused by non-work related factors (e.g. at the request of the H-1B alien or if circumstances render H-1B unable to work); (4) failure by employer to offer H-1B benefits on the same basis as the employer's U.S. workers (e.g. insurance; retirement-savings plans; bonuses, stock options, etc.); (5) placement of non-exempt H-1B with another employer who has or does displace a U.S. worker within 90 days prior to or after the filing of the LCA; (6) employer misrepresentation or failure to offer a job to a qualified U.S. worker (penalty of $1,000 per violation and one year disbarment or $5,000 for each willful violation and two year disbarment); (7) when H-1B is terminated by the employer, with or without cause, before the end of H-1B's authorized stay, the employer is liable for payment of the reasonable cost of return fare to the H-1B's last place of foreign residence.
Good Faith Compliance: An employer is deemed to have complied with INA§212 (n)(2), notwithstanding a technical or procedural failure to meet such requirements, if there was a good faith effort to comply with the requirements. This good faith clause shall not apply if DOL has explained the basis of the failure or if the employer has been given time to correct the failure and has failed to do so.
Under this subsection, an employer will not be assessed fines or penalties for failure to pay the prevailing wage if he can establish that the manner in which the prevailing wage was calculated was consistent with recognized industry standards and practices.
Dependant Employers: Additional statutory provisions protect against displacement of U.S. workers by H-1B "dependent" employers. Displacement occurs when an employer "lays off" a U.S. worker from a position essentially equivalent to the one offered to the H-1B alien. These provisions create special attestation requirements for H-1B dependent employers, and provide for increased penalties for their LCA violations. An H-1B "dependent" employer is defined as an employer who has 25 or fewer "full-time equivalent" ("FTE's") employees in the United States and who employs more than seven H-1B's. An employer who has 26 to 50 FTE's employed in the United States of whom more than are 12 H-1B's is considered a dependent employer. An employer who has 51 or more FTE's employed in the United States is considered an H-1B dependent employer if the number of H-1B's employed is equal to 15 percent of the number of FTE's. Exempt H-1B's include: (a) H-1B's who receive wages, including bonuses, in excess of $60,000.00 per annum; and (b) H-1B's who have a master's degree or higher (or the equivalent) in a specialty area related to the H-1B position offered. The more stringent attestations required of H-1B dependent employers and related increased penalties for violations are beyond the scope of this overview.
Labor Condition Application: Prior to filing an H-1B petition, the intended employer must prepare and file Form ETA 9035, Labor Condition Application ("LCA"), with the U.S. Department of Labor ("DOL"). Special software has been developed by DOL to permit the electronic filing of LCA's (filing glitches can occur). By filing the LCA employers are making numerous sworn attestations relating to the proposed H-1B's wages and working conditions as previously described above. Acceptance and certification of the LCA by the DOL is a necessity. Unless the LCA is certified by DOL, the H-IB petition will not be considered valid by the CIS.
H-1B Petition: Only "United States employers" are eligible to petition for H-1B workers. The processing of an H1-B petition with CIS is commenced by filing CIS Form I-129, "Petition for a Nonimmigrant Worker". The petition should be accompanied by an "H Classification Supplement", the original LCA certified by the DOL, CIS Form I-129W, "H-1B Data Collection and Filing Fee Exemption", and applicable CIS fees. Form I-129W is used by qualified employers to request exemptions from the current user fee assessment. These completed forms, together with all other appropriate supporting documentation (e.g. employer support letters, degrees, transcripts, descriptions of specific job duties-responsibilities, etc.), should be filed in duplicate (these procedures are modified if the petition is filed electronically). The denial of an H petition may be appealed to the CIS Administrative Appeals Office. Note: It is extremely important to try and get it right the first time. Should the CIS initially determine either ; (1) the job position's description-duties do not qualify it as a "specialty occupation"; or (2) that the individual is not qualified for the "specialty occupation", it may be extremely difficult to obtain a favorable CIS decision with either an amended or new petition.
Change of status vs. visa requirement: The H-1B petition may include a request to change the status of an alien who is in the U.S. in another nonimmigrant status, or it may request the CIS to notify one specific U.S. consulate of the H-1B petition's approval. CIS documents its approval of an H-1B petition by issuing a Form I-797, "Notice of Action". Aliens outside the U.S. or those ineligible to change their status will normally need to obtain an H-1B visa (H-4 for qualified dependents) from a U.S. consulate to apply for entry into the United States. If the alien is visa exempt (e.g. Canadian), the alien should present the original Form I-797 at the port of entry into the U.S. in lieu of a visa. Upon admission to the United States the alien is issued CIS Form I-94 Arrival/Departure Record which reflects the H status, and upon which the CIS indicates the date to which the he/she is authorized to stay in the U.S. The I-94 should be issued for the duration of the H-1B visa petition's validity. When changing or extending H status within the United States, the I-94 appears on the lower portion of the CIS Form I-797 approval notice. If the alien has changed status and then departs the U. S., the alien will normally need to apply for an H visa at a U. S. consulate in order to return to the United States. An exception to this rule would normally be a trip of less than 30 days to either Canada or Mexico by an alien with a valid I-94 (Note if applying for a new H-1B at a U.S. consulate and the application is denied one may not reenter the U.S. with the I-94).
Extensions: A new petition to extend H status should be filed before the current petition's validity expires. A concurrent application for the extension of any H-4 derivative family members should be made utilizing CIS Form I-539. When an H-1B extension is properly submitted to CIS before the alien's current status expires, the alien is authorized to continue employment with the same employer for an additional 240 days or until a decision is received from CIS. The American Competitiveness in the Twenty-first Century Act of 2000 (ACWIA) provides that H-1B eligibility may be extended beyond the normal six year maximum period for: (1) an H-1B for who either an I-140 first, second, or third preference immigrant visa petition has been approved and, except for a per country visa limitation his/her permanent resident application could be adjudicated; or (2) an H-1B who is the beneficiary of any employment-based petition as long as 365 days or more have elapsed since the labor certification application or I-140 immigrant petition was filed. Such an extension is granted in one-year increments.
Portability Provisions: Individuals currently in H-1B status may begin new employment upon the proper filing of the new H-1B petition without having to wait for its adjudication by the CIS (Unless subject to the cap based upon "exemption"). Note: Should the H-1B petition later be denied by CIS, the new H-1B employment authorization would terminate immediately. Individuals whose applications for adjustment of status ("I-485's") have been pending with CIS for more than 180 days after the I-140 petition has been approved, may change positions or employers without affecting the validity of the subject employment based petition or labor certification (providing the new position is in the same or a similar occupational classification).