H-1Bs are the most popular “work visas” for most U.S. employers. They may be obtained by virtually any established company in the United States seeking to hire a professional level employee from abroad. Not surprisingly, H-1Bs are also the most heavily regulated nonimmigrant classification, and numerous restrictions are imposed on employers by the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS). These restrictions should be considered carefully prior to making the decision to sponsor a job candidate for H-1B status.
The overwhelming majority of H-1Bs are filed for foreign nationals working in “specialty occupations” (generally, professions requiring at least a bachelor’s degree in a specific field) for private companies. The discussion below focuses on this subcategory. Additional information on H-1Bs for Fashion Models and for Department of Defense (“DOD”) cooperative research can be found at the USCIS website.
What is a “Specialty Occupation”?
The Immigration and Nationality Act defines a “specialty occupation” as:
…an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s degree or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. (Emphasis added)
Essentially, this means that to be considered a “specialty occupation,” the occupation must require a bachelor’s degree in a specific field. Although the USCIS’ regulations provide further elaboration on this definition, for many occupations it is still unsettled whether a bachelor’s degree is in fact the normal academic prerequisite. Petitions for marketing analysts, underwriters, general managers, and executives, to name a few, are sometimes singled out by the USCIS and denied on the basis that the occupation does not require a bachelor’s degree. The preparation of such cases requires great care in documenting how the duties of the position relate to a specific bachelor’s level course of study. Supporting materials should also be submitted to show that similar positions at the company, and in the industry also require a bachelor’s as a minimum educational prerequisite. Some examples of occupations which clearly do meet the standard for specialty occupation include: accountants, architects, engineers, financial analysts, pharmacists, lawyers, physicians, and teachers.
As one would expect, an H-1B petition for a worker in a specialty occupation must also show that the beneficiary actually possesses a bachelor’s degree, or its equivalent, in that specialty. Where the beneficiary attained his or her degree abroad, a foreign credentials evaluation must be submitted with the degree to show that the foreign degree is equivalent to a U.S. degree in the same field. Where the beneficiary does not have a bachelor’s degree in the field, but has education that would be equivalent to one, an evaluation from a foreign credentials evaluator may also be submitted to the USCIS to show that the person meets this requirement. Where the beneficiary does not have a bachelor’s degree, but has substantial related work experience, the petitioner may demonstrate that the beneficiary has a the equivalent to a bachelor’s by showing that the individual has achieved “a level of knowledge, competence, and practice … that has been determined to be equal to that of a an individual who has a bachelor’s or higher in the field.” This may be shown through one or more of the following: a determination under the so-called “3 for 1” rule demonstrating that the person has 3 years of work experience for each year of missing college education; an evaluation from a professor with authority to grant academic credit for work experience; and/or, results from a college equivalency examination.
“3-for-1” determinations are made by the USCIS based on evidence submitted by the petitioner. The evidence, which usually includes evaluations from at least two authorities in the field, employment verification letters, and other documentation regarding the individual’s achievements, must demonstrate that the beneficiary has attained three years of work experience for each missing year of education. For example, a beneficiary who has a two year associate’s degree and six years of work experience would meet the 3-for-1 rule, and may be considered to have the equivalent of a bachelor’s degree; the two years of additional education that would be required to reach the bachelor’s level is made up for by the person’s 6 years of work experience. It should be noted, however, that the USCIS has a great deal of discretion in this area, and may not make a favorable determination, even where the 3-for-1 rule is clearly met.
Employers may also submit an equivalency evaluation from a professors or professors who have authority to grant college-level credit for training and/or experience in the field at an accredited university which has a program for granting such credit. This option may prove to be more flexible than thet 3 for 1 rule. Thus, a person with no degree and limited experience, but a great deal expertise in the field may qualify for H-1B sponsorship.
Evidence to show that the beneficiary who has passed a college level equivalency examination or special credit program, such as the College Level Examination Program (CLEP) or Noncollegiate Sponsored Instruction (PONSI) may also be submitted to help establish his or her bachelor’s level equivalency. However, because these exams only relate to specific college courses rather than an entire degree program, they should always be submitted in conjunction with 3-for-1 documentation or professorial evaluation.
H-1B Filing Procedures
The first step in obtaining H-1B status on behalf of a prospective employee is to file a Labor Condition Application (LCA) with the Department of Labor (see discussion on Prevailing Wage and LCA requirements below). Once the LCA is approved, which normally occurs within a few seconds when submitted through the Internet, the H-1B petition may be filed with the USCIS. Note, however, that H-1B1s pursuant to free trade agreements with Chile and Singapore may be filed directly with a U.S. embassy or consulate abroad (see below). Petitions filed with the USCIS usually take from 2 to 6 months to be approved. If premium processing is requested for an additional $1,000 filing fee, the petition will normally be adjudicated within 15 days.
Once the petition is approved, the beneficiary may apply for an H-1B visa at a U.S. consulate or embassy abroad. If the beneficiary is already in the U.S he or she normally does not have to leave the U.S. to apply for a visa prior to taking up employment at the new sponsor so long as he or she is in valid status at the time of filing the petition. If the person is in the U.S. in H-1B status for another employer, he or she can usually begin working as of the filing of the new petition pursuant to “H-1B Portability.”. If the person is in the U.S. in a different status, he or she usually can begin working at the H-1B sponsor once the petition is approved, and as soon as the effective date has been reached. For example, a “change of status” petition is filed for an individual in F-1 student status on April 1, 2005, and is approved on August 15, 2005, but the effective date is not until October 1, 2005. The person cannot begin working at the sponsor until October 1, 2005. If the person were already in H-1B status at the time of filing, however, he or she could usually begin working at the new sponsor on April 1, 2005, the date the H-1B was filed.
Time Limits for H-1Bs
H-1B status may be granted initially for a period of up to three years, Extension may be granted in up to 3 year increments for a total period of six years. However, if the H-1B worker is a beneficiary of a labor certification, or an EB-1 (excluding Aliens of Extraordinary Ability), EB-2, or EB-3 employment-based immigrant petition, which has been on file for at least 365 days, the H-1B status may be extended beyond the six year limit in one year increments until the person obtains a green card. If the person's H-1B period of stay is exhausted, he or she may not remain lawfully in the U.S. as an H-1B until he or she has been outside the U.S. for a continuous period of at least 365 days. For purposes of calculating the maximum period in H-1B status, any time spent in the U.S. in H-4 dependent status, L-1 status or L-2 dependent status is also included.
Green Card Sponsorship and the “Doctrine of Dual Intent”
Unlike most other nonimmigrant classifications, the Immigration and Nationality Act (INA) and USCIS regulations imposes few restrictions on foreign nationals who are seeking permanent residency while in H-1B status. Traditionally, to be admitted into the United States, all nonimmigrants were required to prove a residence abroad for which they had no intention of abandoning. This meant that they had to convince the consular officer and/or immigration officer that they were not intending to pursue permanent residency (“green card” status) once admitted as a nonimmigrant. Although this is still the case for most classifications, the legacy INS and later Congress began to recognize a distinction for temporary workers in H-1B, and L-1 statuses, and, to a lesser extent, workers in E-1, E-2 and O-1 statuses. This exception which is referred to as the “the Doctrine of Dual Intent” allows H-1Bs and L-1s to seek permanent residency, and actually apply for permanent residence status, without jeopardizing their H-1B or L-1 temporary status. Although USCIS policy memoranda has stated that E-1, E-2 and O-1 status holders may also seek permanent residency, the ability to file a green card (adjustment of status) application without jeopardizing one’s E or O status, has yet to be established in the regulations.
Prevailing Wage and Labor Condition Application Requirements
As noted above, prior to filing an H-1B petition on behalf of an employee, the employer must sign and submit to the DOL a Labor Condition Application (LCA). In so doing, the employer makes several attestations regarding the wages and working conditions of the prospective H-1B position. The employer agrees to pay the H-1B worker the higher of the actual wage, which is the wage paid to other employees with similar qualifications and experience who are employed in the same position at the company, or the prevailing wage for the occupational classification in the area of intended employment. The employer must also attest that it will offer the same working conditions to the H-1B worker as it offers to U.S. workers, and that hiring the H-1B worker will not adversely affect the working conditions of similarly situated workers. In addition, the employer must attest that it has provided notice of the H-1B position to workers at the worksite by providing a copy of the LCA to the appropriate union representative, or, if the job is non-unionized, posting the LCA information, including salary, through electronics means or in two conspicuous locations at the place of employment for 10 business days.
In addition to the attestations, the LCA requirements carry numerous complex restrictions and record-keeping requirements for employing H-1B workers. Among these, an employer may not place an H-1B worker in non-productive status due to a lack of work (“benching”), and must comply with several off-site employment requirements when assigning an employee to a different location or client site, even where the assignment is temporary. The employer must also prepare and maintain a public access file for all its H-1B workers containing information regarding salary, benefits, and prevailing wage and actual wage documentation. This file must be made available to any member of the public who wishes to see it. These and other DOL requirements for H-1B employers are discussed in-depth in our LCA handbook. Given the complexity of these requirements, and the significant penalties that may be imposed on employers who fail to comply with them, we recommend that employers review the LCA requirements thoroughly prior to hiring an employee in H-1B status. Should you have questions, we encourage you to contact our office.
H-1B Employer’s Responsibility for Terminated H-1B Workers
In addition to the LCA requirements discussed above, employers face other regulatory requirements when terminated a worker in H-1B status. Where the worker is terminated prior to exhaustion of the approved term of employment, the employer must pay the reasonable cost of return fare to the employee’s country of last residence. The employer is not, however, required to pay for the employee’s family members, or personal belongings. The employer is also obligated to notify the USCIS once an employer has been terminated. It is critical that this step be taken as soon as possible, and that the employee’s last day of employment is indicated on the notification. The USCIS will send a letter confirming that it has revoked the H-1B petition once it receives this letter.
Pursuant to the so-called “H-1B Portability” provisions of the American Competitiveness in the 21st Century Act, a person who is in the United States working for an employer in H-1B status may begin working for a subsequent H-1B employer as of the filing of the new petition, so long as the employee has not worked without authorization since his or her last entry into the United States, and the new petition is non-frivolous. As a practical matter, it is generally prudent for the employer to wait until it receives a receipt notice from the USCIS before having the employee begin working. If the employer relies solely on proof that the petition was received by the USCIS, and the petition is later rejected, which the USCIS sometimes does erroneously, the petition will be deemed to have never been filed, and the employee could be considered to have worked without authorization.
H-1Bs and the Impact of Mergers & Acquisitions, and other Changes in Corporate Structure
Where a merger, acquisition or other change results in an H-1B worker having a new employer, the new employer is not necessarily required to file a new petition on behalf the employee. However, the new employer must prepare a statement assuming all of the LCA attestations and obligations associated with employing the H-1B workers. LCA public access files and other H-1B records should therefore be reviewed carefully prior to the merger or acquisition. Where the records contain errors, omissions or misstatements, the new employer may wish to file new H-1B petitions prior to the acquisition, which will terminate its liability for the attestations made by the predecessor company.
The Annual H-1B Cap
The hiring of an H-1B worker is subject to an annual cap of 85,000. Of this, 6,800 are reserved for H-1B1 applicants from Singapore and Chile, and 20,000 are reserved for graduates from U.S. universities with a Master’s degree or higher. If the H-1B1s for Singaporean and Chilean nationals are unused, they are reallocated in the first 45 days of the next fiscal year to all other H-1B applicants.
The cap does not apply to H-1Bs working for institutes of higher education, nonprofit research organizations or governmental research organizations. However, if an H-1B employed at such an institute or organization quits or is terminated, the person immediately becomes subject to the cap, unless previously counted against it. The cap also does not apply to persons who have been granted H-1B status at least once in the last six years, and have not left the U.S. for a continuous year since last holding H-1B status. For example, a beneficiary who was granted an H-1B five and a half years ago, and has been in F-1 status for the last four years would not be subject to the cap. However, a beneficiary who was granted an H-1B a year ago, but never entered the U.S. to begin working, would be subject.
It is worth noting that the H-1B cap is subject to a Congressional tinkering, and changes from year to year are inevitable. The cap was introduced in 1992 with a limit of 65,000. It remained at that level until 1999, when it was raised to 115,000. During the dot-com boom, there was such a clamor for an increase in the quota due to a severe shortage of available American workers that Congress responded by raising the cap even higher to 195,000. By the time the cap was raised, however, the country was in the midst of the post-dot-com bust and the 195,000 quotas for 2001, 2002 and 2003 were never reached. In Fiscal Year 2004, the temporary increase ended and the cap reverted back to 65,000, which was reached on the very first day of the Fiscal year. On December 8, 2004, President Bush signed the Consolidated Appropriations Act of 2005 and established the additional 20,000 H-1B numbers to be set aside for persons holding Master’s degrees and above that were conferred by U.S. universities.
Free Trade H-1B1s for Singaporean and Chilean Nationals
Due to free trade agreements signed with countries of Chile and Singapore, nationals from these two countries are reserved 6,800 H-1Bs from the annual cap (1,400 for Chile and 5,300 for Singapore). These special H-1Bs are termed “H-1B1s.” Petitions for H-1B1 status need not be filed with the USCIS prior to applying for a visa; once the LCA has been certified, the visa application may be submitted directly with the U.S. embassy or consulate abroad. Because it is unlikely that the annual allocation of H-1B1s will ever be reached, for practical purposes, Singaporean and Chilean nationals are exempt from the cap.
H-1B1 status does, however, does have drawbacks. It can only be granted in 18 month increments, rather than 3 year increments. H-1B1 is also not a “dual intent” status. Thus, H-1B1 applicants must convince the consular officer when applying for a visa that they have a residence abroad which they have no intention of abandoning, and that they will not pursue permanent residency while in the U.S. in H-1B1 status.