The H-1B Classification

ELIGIBILITY FOR AN H-1B VISA:

Under the Immigration and Nationality Act (“INA”), the H-1B category is reserved for both foreign nationals coming to the United States to perform services in “specialty occupations” and foreign fashion models of “distinguished merit and ability.”;

Under INA Section 214(i)(1), ‘specialty occupation’ is defined as ‘;an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor (or its equivalent) or higher degree in the specific specialty as a minimum for entry into the occupation in the United States.’

8 C.F.R.Section 214(h)(4) further defines ‘specialty occupation’ to mean ‘an occupation which requires theoretical and practical application of a body of highly specialized knowledge in the fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor?degree or higher in a specific specialty or its equivalent, as a minimum for entry into the occupation in the United States.’

Since the foreign national is filling a position in a “specialty occupation,” he or she must have the necessary credentials for that positon.

H-1B ANNUAL QUOTA:

The annual H-1B cap is set at 65,000. Furthermore, USCIS will exempt the first 20,000 petitions for H-1B workers who have a master’s degree or higher from a U.S. institution of higher learning. After those 20,000 slots are filled, the USCIS will apply petitions for H-1B workers with a master’s degree or higher against the annual cap of 65,000.

MINIMUM QUALIFICATIONS REQUIRED TO QUALIFY FOR AN H-1B VISA:

Not only must the foreign national possess the requisite qualifications for an H-1B, the sponsoring employer must also meet certain criteria in order to obtain an H-1B.

With regard to the qualifications of an alien worker, some of the most important factors reviewed by the USCIS are:

  • A bachelor’s or higher degree in a specific field is the entry-level requirement;
  • The degree requirement is accepted throughout the industry in parallel positions among similar companies;
  • Absent such acceptance, the employer can show that the particular position is so complex or unique that a degree is required;
  • The employer’s normal requirement for the position is a degree (that is, other persons filling parallel positions hold degrees or the prior occupants of the position held degrees);
  • The complexity of the specific job duties is usually associated with attainment of a degree; and
  • The level of responsibility and authority involved in the position is usually associated with professional standing.1

MAXIMUM PERIODS OF STAY, EXTENSIONS AND RENEWALS OF AN H-1B:

The H-1B is usually granted for an initial period of three (3) years, which can be extended for an additional three (3) years, for a total time frame not to exceed six (6) years. Some of the most important exceptions to the six year limit are as follows:

  1. The foreign national engages in U.S. employment on an intermittent or seasonal basis or for less than six months in the aggregate per year; or
  2. The foreign national is the beneficiary of an approved I-140 petition and is otherwise eligible for adjustment of status, except for the unavailability of a visa number; or
  3. the foreign worker may obtain an extension beyond the six-year limit if a labor certification (Form ETA 9089) or an employment-based immigrant visa petition has been filed on his or her behalf at least one year before the filing of a post-sixth year H-1B extension request, that is, by the end of the fifth year in H-1B status.

PROCEDURAL STEPS IN FILING FOR AN H-1B VISA:

  1. Prevailing Wage Determination:

The employer must first obtain a prevailing wage determination in the area of intended employment from an acceptable source. Although the Foreign Labor Certification (FLC) online data center is a good source for acquiring prevailing wage information, the employer can also determine the previling wage by utilizing an acceptable wage survey source. After obtaining the prevailing wage, the employer is then required to file Form ETA 9035 (Labor Condition Application) with the U.S. Department of Labor.

  1. Filing the Labor Condition Application (Form ETA 9035) with the U.S. Department of Labor (DOL):

The purpose of filing the LCA is to ensure that the employment of alien workers will not adversely affect the wages and working conditions of U.S. workers. After obtaining a prevailing wage determination, the employer must file a Labor Condition Application (LCA) (Form ETA 9035) with the DOL. Some of the parameters governing the filing of the LCA are as follows:

  • Each LCA may be filed for only one occupation, and a separate LCA must be filed for each occupation for which H-1B workers are required.
  • Multiple workers on a single LCA – The employer may seek certification for multiple H-1B workers in a single LCA as long as it is the same occupation.
  • Multiple locations on a single LCA – the employer can list up to three worksites per LCA

The employer must also make several attestations in the LCA, including:

  • Paying the alien worker the higher of the required prevailing wage or the actual wage paid to US workers “with similar experience and qualifications for the specific employment in question;”
  • The employer will offer the alien worker the same benefits package on the same basis to similarly placed US workers. This does not prevent employers from paying discretionary bonuses to some employees based on performance, skill, billable hour rate;
  • Employing the alien worker will not adversely affect the working conditions of similarly employed US workers;
  • There is no strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification at the place of employment at the time of filing the LCA. If a strike or lockout occurs after the LCA is submitted, the employer will notify the DOL within three days of its occurrence and the LCA will not be used in support of H-1B petitions filed with the USCIS until the DOL determines that the strike or lockout has ceased.
  • A copy of the LCA has been, or will be, provided to each H-1B worker employed pursuant to the LCA, and the employer has also provided notice of the filing of the LCA to the bargaining representative of the employer’s employees in the occupational classification, or if there is no bargaining representative, the employer has physically posted notice of the filing of the LCA on the employer’s premises
  1. Filing an H-1B Petition with USCIS – Required Documents:

Upon certification of the LCA, the employer may submit an H-1B petition to USCIS with proof that the job offered conforms to the prevailing H-1B regulations. Moreover, the following documentation must also be submitted to complete the H-1B petition:

  • Form G-28, if you are being represented by an attorney
  • Form I-907 (if filing for premium processing)
  • Form ETA 9035 (Labor Condition Application)
  • Form I-129, and accompanying Supplement H, and I-129 H-1B Data Collection Supplement
  • Employer’s letter in support of the H-1B petition
  • A copy of the most recent I-94 issued to the foreign national
  • If foreign worker is on F-1 status, then a copy of I-20 and evidence of employment authorization will be needed, if applicable
  • Evidence of foreign worker’s educational qualifications (such as degrees obtained, transcripts, experience letters and resume. Note: an equivalecy evaluation may be necessary in the event that the foreign worker has a foreign degree(s))

TERMINATION OF H-1B EMPLOYEES:

As a general rule, the foreign national must depart the United States on or before the date listed on his or her I-94. This rule does not apply, however, if the foreign worker’s employment is terminated before the date listed on his or her I-94. According to USCIS, H-1B workers who are laid off or terminated are subject to the following rules:2

1. Laid Off H-1B Employees With Advance Notice – What if you are an employee in H-1B status and you receive advance notice that you will be laid off before your validity period ends? Can you change employers?

USCIS Response: Prior to being laid off, another qualified H-1B employer may file a Form I-129, Petition for a Nonimmigrant Worker, on your behalf with USCIS. In order to change employers without having to depart the United States, the I-129 petition should have been filed prior to the termination of your job and you must have been maintaining valid H-1B status. If the I-129 petition is filed after your dismissal, you may have to return overseas to process your H-1B visa for the new employer.

2. Laid Off H-1B Employees Without Advance Notice – What if you are an employee in H-1B status and you are laid off with no advance notice before the end of the validity period? Can you begin working (or port to) another job with a different employer?

USCIS Response: An H-1B nonimmigrant is admitted to be employed by the sponsoring H-1B petitioner. If the employment ends, this condition is no longer satisfied and the individual is no longer in a lawful nonimmigrant status and may be subject to removal proceedings. Therefore, the terminated H-1B nonimmigrant in this scenario may not be able to port to another employer, subject to certain discretionary exceptions.

Depending on the individual’s circumstances, the H-1B worker may be eligible to remain in the United States due to a request for a change of status or for extension of stay that is filed while that individual is maintaining H-1B status, or on account a pending adjustment application. In deciding whether to approve a change or extension of status for any nonimmigrant who has fallen out of status, however, USCIS may exercise discretion on a case-by-case basis to grant the extension or change of status despite the failure to maintain status.

There is no automatic 10-day or other grace period for terminated employees holding H-1B status, so once the individual is no longer in a lawful nonimmigrant status, he/she usually must depart from the United States.

Employer Liability for Reasonable Costs of Return Transportation:

In the event that the foreign workers employment is terminated before the prescribed end date of the H-1B visa term, then the employer may be liable for the “reasonable costs” of return transportation for the foreign national to his or her last country of residence. This obligation only continues during the validity of the foreign workers H-1B status, and the employer is not obligated to pay the costs of return transportation in the event that the employee becomes a permanent resident or changes to any other status.