On Jul 05 2005
H-1B Specialty Worker (H-1B for Principal; H-4 for Spouse or Child)
An H-1B visa is a temporary visa that allows companies to temporarily employ persons in a 'specialty occupation' in the United States, provided that the employer has obtained a certified labor condition application in which it has attested that employment of an H-1B worker will not adversely affect the wages or working conditions of the employer's U.S. workers.
I. Definitions of ‘Specialty Occupation’
A specialty occupation is one that requires theoretical and practical application of a body of highly specialized knowledge, in a field that is normally recognized as a specialty in which bachelor’s degrees are awarded, and that requires the attainment of a bachelor’s degree or higher in the specific specialty (or equivalent experience) as a minimum requirement for entry into the occupation in the United States. Criteria for determining whether an occupation is a ‘specialty occupation’ include whether a bachelor’s or higher degree is normally the minimum requirement for entry in the occupation; whether the degree requirement is common to the industry (or the particular position is so complex or unique that it can only be performed by an individual with a degree); whether the employer normally requires a degree or its equivalent for the position; and/or whether the nature of the specific duties is so specialized and complex that knowledge required to perform them is usually associated with having attained a bachelor’s degree.
II. Foreign National’s Qualification for the Position
The foreign national must be qualified for the position by having obtained at least a bachelor’s degree, or by having obtained expertise through experience that is the equivalent of expertise gained in earning a bachelor’s degree. A degree awarded by an educational institution outside of the United States must be evaluated by a recognized credentials evaluation expert as the equivalent of a bachelor’s degree from an institution in the United States. Several commercial enterprises provide such educational evaluations for a fee. If the individual does not have a degree that is the equivalent of a bachelor’s degree, experience in the specialty field may be substituted in lieu of education at a rate of three (3) years of experience required for every year of education that the employee did not complete. Thus, in order to be considered equivalent to an entire four-year bachelor’s degree, an employee would require at least 12 years of experience in the specialty field. Employers should be aware, however, that the fact that an employee is able to qualify for the position without a degree may cause the INS to question the employer’s assertion that a bachelor’s degree is the normal minimum requirement for the job.
III. Duration of H-1B Status
H-1B status is granted initially for increments of up to three (3) years, and may be extended for up to three (3) years at a time; however, the individual’s total stay as an H-1B may not exceed six (6) years, whether with one employer or several in sequence. After six (6) years, the individual must depart the United States for at least one (1) year prior to being readmitted in H-1B status, unless the employer initiated the permanent residence process before the end of the 5th year of employment. If an employer dismisses an H-1B employee prior to the conclusion of his/her authorized period of employment, the employer is obligated to pay the return costs of transportation to the alien’s last place of residence outside the U.S.
IV. Procedure for Obtaining H-1B Status
The first step is obtaining H-1B status is to determine the ‘prevailing wage’ for the occupation. The employer may request the State Workforce Agency to provide a prevailing wage determination; may use an industry-standard survey or other published wage source; or may use any other bona fide source of prevailing wage information for the occupation in the area in which the individual will be employed.
Once it is determined that the employer is offering at least the ‘prevailing wage’ for the occupation, the employer should complete Form ETA-9035, a Labor Condition Application (‘LCA’), and submit it to the Department of Labor for review and certification. Prior to submitting the LCA to the Department of Labor, the employer should be sure it has created a ‘public examination file’ containing all of the documentation required by Department of Labor regulations to support the employer’s four attestations in the Labor Condition Application. In the Labor Condition Application, the employer is attesting that it has offered a wage that is the higher of the prevailing wage for the occupation, or the wage actually paid by the employer to employees with similar qualifications; that it is offering benefits and working conditions to the H-1B employer on the same basis as to U.S. citizen employees; that there is no strike or lockout in the course of the labor dispute in the occupational category for which the H-1B Labor Condition Application is sought; and that the employer has provided notice of the filing of the Labor Condition Application by means of posting a copy of the LCA form at the location of employment where the H-1B worker will be employed. The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) added new requirements for employers who use a higher percentage of H-1B workers, including a requirement to recruit in the United States for U.S. workers before hiring an H-1B nonimmigrant, and agreeing not to lay off any U.S. workers before hiring an H-1B nonimmigrant. ACWIA also significantly enhances the enforcement system to identify and punish those who do not comply with these requirements. The punishments include repaying salaries to the foreign nationals if it is found that they have been underpaid, as well as fines of up to $35,000 and debarment from immigration programs for three years.
Once the LCA is certified and returned to the employer by the Department of Labor, it should be submitted along with duplicate originals of Form I-129 to the Immigration and Naturalization Service, along with a description of the position to be offered and the employer’s normal educational requirements to be able to perform the position, a description of the duties to be performed, and proof that the individual has the qualifications required to perform the position (including evaluation of a foreign degree, if necessary). The petition must be accompanied by the petition filing fee ($320 presently) and a check from the employer for the ‘U.S. worker training fee’ added by ACWIA ($1500 presently), and a check for the $500 ‘Fraud Detection and Prevention Fund’ fee. This second fee goes into a fund to provide educational training for U.S. workers. If the employee is in the United States, and is seeking change of status or is seeking to change employers within the H-1 category, evidence should also be presented that the employee is presently maintaining his or her nonimmigrant status, so that status can be changed in the United States.
If the foreign national is outside the United States, the approval of the petition (which normally takes up to four weeks) will be cabled to the American Consulate in the employee’s home country, where the employee will be instructed to come and apply for a visa. (The employer will also be sent an approval notice that, with a copy of the complete H-1B petition, can be used by the employee to apply for a visa without waiting for the cable.) If the foreign national is in the United States in lawful status, the employee will be issued a new I-94, Departure Record, which documents the change of status to H-1B for the petitioning employer.
The H-1B visa category is limited by statute to no more than 65,000 new admissions for each fiscal year. These limits are often reached on or before the start of each fiscal year, but do not apply to certain employers (universities and nonprofit research institutions). There is also a separate cap of 20,000 visas per year for foreign nationals who earned a master’s or higher degree from a US university, which is available during most of the fiscal year.
V. Timing Issues
The processing times for obtaining approval to employ a worker in H-1B status vary widely by geography and time of year. Government agency processing times typically fluctuate between 60 to 90 days or more. In addition to the agency processing times, substantial delays are caused because petitions seeking H-1B status on behalf of workers who have not previously been granted H-1B status are numerically limited. No more than the specified number of new H-1B petitions can be granted in each fiscal year, which may result in the supply of new H-1B petitions being exhausted early in the fiscal year, making a prospective H-1B worker effectively unavailable until October 1 of the following year. Hiring a worker currently holding H-1B status for another employer is not limited by this numerical cap, so that such prospective employees are available year-round.