A. Temporary Employment Visa
This article will provide a general overview of the requirements for obtaining an H-1B visa. The H-1B category is an expedient and lawful method to bring foreign-born professionals temporarily to the United States, and therefore the most widely sought after visa classifications for employment in the United States. To obtain an H-1B visa, there must be a job offer and an employer who is willing to sponsor a person by filing a petition with the U.S. Citizenship & Immigration Service (USCIS). The USCIS will review the petition and send an approval notice if it is satisfied that all conditions for approval are met. An individual may have a petition filed for him from more than one employer if he or she seeks employment in two jobs. Also, if an individual is in H-1B status and seeks to change jobs, then he or she must have a petition filed for him by his or her new employer.
An individual may work in H-1B status for a maximum of six years. However, a petition will not be approved for more than three years at one time. An extension of stay is requested if an individual is in H-1B status already and he or she is eligible for a longer period of employment. A petition may be filed by a job contractor, namely a person or entity that pays its employees for services performed at the work sites of other employers. See our article on computer professionals.
If the beneficiary of an H-1B petition is in the U.S. in valid status (e.g., F-1 student visa or B-1 or B-2 visitor visas or any other valid nonimmigrant visa status), he or she may change status within the U.S. and continue to reside in the U.S. thereafter in H-1B status until the expiration date specified in the H-1B approval notice. If the beneficiary is not present in the U.S., he or she must apply for an H-1B visa at a U.S. Consulate outside the U.S. upon the USCIS's approval of the H-1B petition. Dependent immediate family members (spouse and children under 21 years of age) may enter on an H-4 visa along with the principal beneficiary. See our article on family members.
In general, most nonimmigrant visa classifications require that a person maintain a foreign residence abroad and show that he or she is coming to the U.S. temporarily. However, the law allows a person on an H-visa to have "dual intent," which is arguably the most beneficial aspect of obtaining this visa. Under the dual intent doctrine, a person may come to the U.S. temporarily and lawfully seek permanent residence in the United States at the same time. Therefore, the filing of an application for labor certification (also known as PERM) or an employment based preference petition will not result in the denial of an H-1B petition filed with the USCIS, or an application for an H-1B visa stamp at a U.S. Consulate abroad pursuant to H-1B petition approval by the USCIS.
The employer seeking the services of an H-1B visa holder and filing the necessary papers to obtain such services must be a "U.S. employer." A U.S. employer is a person, firm, corporation, contractor or other association or organization in the United States with an Internal Revenue Service (IRS) tax identification number. There must be an employer-employee relationship, as indicated by the fact that the employer may hire, fire, pay, supervise or otherwise control the work of the employee. The employer must demonstrate that the position is one requiring a professional in a specialty occupation and that the intended employee has the required qualifications.
Concurrent, Transfer, Extension of H-1B Employment
H-1B nonimmigrant category workers may be employed by several employers concurrently, e.g., a Systems Analyst employed by one company who also does consulting work for another company. If the H-1B worker has H-1B status from an employer and will continue to work for that employer while commencing new employment for a second employer, the second employer must file an H-1B petition requesting extension of H-1B status of the worker.
Under H-1B portability rules, the worker may start employment for the second employer as soon as the petition has been filed; there is no requirement to wait for approval of the H-1B petition. Part-time employment through the second employer is fine as long as the petition states that it is for part-time work, and as long as the position is still a specialty occupation requiring a relevant bachelor’s degree or foreign equivalent.
"Transfer" and Extension by same or another Employer
If the H-1B temporary worker wants to change employers and continue to maintain H-1B status, it is treated as an extension of stay. The words “H-1B transfer” is misleading. The USCIS term is “extension of status” since transfer of H-1B incorrectly implies only one employer at a time, or that something gets "transferred" (except the employee) from one employer to another. Indeed, Employer B can file an H-1B petition without the consent or even the knowledge of Employer A (current employer). Thus, extension of H-1B status is the correct terminology and is applicable where an H-1B petition is filed by the same employer in order to extend H-1B status of an employee whose H-1B status is about to expire. It is also applicable when an H-1B petition is filed by another employer.
Since the beneficiary has already been documented to have H-1B level credentials, less extensive documentation may be necessary to establish continuing eligibility in a subsequent H-1B petition. At the same time, each H-1B petition is considered independently of another on its merits, and there are instances of H-1B extension denial even though the petition requesting extension of status has been filed by the same employer. An earlier H-1B approval, even by the same employer, should never lead to complacency when extending status.
What happens when two employers file H-1B petitions for the same candidate, the candidate elects to work for one employer, but then changes his mind and commences work for the second employer? Does the second employer have to file a new or amended H-1B petition? An American Immigration Lawyers Association colleague described this actual scenario in a letter to Yvonne M. LaFleur, Adjudications Chief, USCIS Nonimmigrant Branch.
Two employers, A and B, file H-1B petitions for the same worker. The petitions are duly approved and H-1B status granted. The beneficiary elects to work for Employer A. Several months later, the beneficiary becomes unhappy as an Employer A employee. He would prefer to work for Employer B. The question put to Chief LaFleur is whether Employer B can lawfully hire the worker under the authority of its already approved H-1B visa petition? (The job duties, place of employment and compensation in Employer B's H-1B visa petition are not changed). Must Employer B file a new or amended petition to accommodate this situation?
Chief LaFleur responded by stating the general rule that H-1B petitions are valid until revoked by the USCIS, the petitioner goes out of business, or the employer files a written withdrawal (revocation) of the H-1B petition. Therefore, there is no need for Employer B to file a new or amended petition.
Chief LaFleur cautions, however, that according to the regulations, an employer should immediately notify the USCIS of any changes in the terms and conditions of the beneficiary's employment. Therefore, Employer B should have notified the USCIS as soon as it was discovered that the beneficiary was not intending to avail himself or herself of the offer of employment. In conclusion, however, "since the regulations do not contain a penalty for failing to notify the Service in this instance, the petition filed by Employer B remains valid."
What Is "Specialty Occupation"
The USCIS's definition of a specialty occupation is an occupation that requires a theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific specialty or its equivalent as a minimum for entry into the occupation.
Although this may seem like a great deal of jargon for most people, it is essentially a safe bet to look at the position and see if the normal minimum requirement for entry into the particular position is a bachelor's degree or its equivalent. A position that would normally not require a bachelor's degree for entry into the field may qualify as a specialty occupation if the position is so complex or unique that only a person with a degree can perform the requisite duties.
Positions that are traditionally considered professional positions would most likely qualify as a specialty occupation. They include positions such as architects, engineers, lawyers, physicians, teachers in elementary or secondary schools, colleges or seminaries. The USCIS has indicated through decisions over the years that accountants, computer professionals, social workers, medical technologists, dieticians, economists, mechanical engineers, and librarians may also qualify as specialty occupations.
After establishing that a particular position qualifies as a specialty occupation, the employer must show that the foreign worker sought meets the requirements needed to engage in a specialty occupation. The person must hold a U.S. bachelor's or higher degree from an accredited college or university and the degree must be required to qualify in the specialty occupation. If the person holds a foreign degree, then that degree must be determined to be the educational equivalent of a U.S. bachelor's degree. In some cases, a person may obtain an educational equivalency through a combination of education, specialized training or progressively responsible work experience. Three years of specialized experience is generally considered equivalent to one year of college education.
Burdens On The Employer
The effect of a foreigner's admission on the jobs of U.S. workers is a major issue in U.S. Immigration policy and law. Therefore, an employer who petitions for a nonimmigrant worker must comply with a number of conditions and regulations. In addition to showing that both the job requirements and the applicant's credentials or experience are "professional," the employer must also meet the Department of Labor ("DOL") requirements and file Form I-129 ("H-1B petition") with the USCIS for permission to employ the foreign national.
Prior to filing the H-1B petition with the USCIS, an employer must file a labor condition application ("LCA") with the Department of Labor. Employers affirm in the labor condition application that the wage offered to the applicant is at least as high as that paid by the employer to current employees for the same type of job, and the number equals or exceeds the prevailing wage for the job in the same geographical area; that working conditions will not adversely affect those workers similarly employed; that there is no strike or lockout at the employer's premises; and that the notice of the LCA has been given to current employees.
A. Additional Burdens On H-1B "Dependent" Employers
On October 21, 1998, the American Competitiveness and Workforce Improvement Act of 1998 ("ACWIA") was enacted. Under the ACWIA, employers considered H-1B dependent will be required to file certain additional attestations and maintain records. An employer will be classified as dependent according to the following scale:
1-25 full time equivalent employees in the U.S.: more than 7 H-1B's.
26-50 full time employees in the U.S.: more than 12 H-1B's.
More than 50 full time employees in the U.S.: 15% or more H-1B's.
The ACWIA has brought about undesirable changes for employers who are dependent on H-1B workers. It requires H-1B dependent employers and certain employers who have made misrepresentations or willfully violated a labor condition to make the following attestations:
The employer has not displaced, and will not displace any U.S. worker from an equivalent job in the same geographic area of employment within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the LCA; and
With respect to placement of the H-1B beneficiary with another employer, the H-1B employer has inquired of the other employer as to whether there has been or will be a displacement of a U.S. worker of the other employer in an equivalent job in the same geographic area of employment within the period beginning 90 days before and ending 90 days after the filing of the visa petition, and the employer has no knowledge of such displacement; and
The employer has taken good-faith steps to recruit for the offered position in the U.S., using procedures that meet industry wide standards and offering comparable compensation; and
The employer has offered the position to any equal or better qualified U.S. worker.
Under the ACWIA, U.S. workers who are employed by the employer are protected from displacement. With respect to the foregoing attestation, the statute makes clear that displacement does not include a discharge for inadequate performance, cause, or violation of work place rules, voluntary departure or situations in which the employee is offered a similar or better employment opportunity with the same employer.
ACWIA does not require the new attestations for "exempt" workers. In order to be considered exempt, the H-1B worker must:
Receive wages including bonuses and similar compensation at least equal to $60,000 per annum; or
Have attained a Master's or higher degree or its equivalent in a specialty related to the intended employment.
Additional filing fee burdens have been placed as of August 14, 2010 on employers with 50 or more employees in the U.S. with more than 50% of its employees in the U.S. in H-1B or L-1A or L-1B non-immigrant status. Employers meeting these criteria must submit an additional fee of $4,000 with the H-1B or $4,500 with the L-1 petition. These supplemental fees must be paid on initial and change of employer petitions.
B. ACWIA Regulations Already In Effect
The American Competitiveness and Workforce Improvement Act (ACWIA) of 1998 has increased the number of H-1B visas available in Fiscal Years (Oct. 1 to September 30) 1999, 2000, and 2001. The schedule of allocations of H-1B numbers is as follows:
FY 1999: 115,000 visas
FY 2000: 115,000 visas
FY 2001: 107,500 visas
In FY 2002, the number of H-1B visas available returned to 65,000 (the number prior to passage of ACWIA in 1998) and it remains at this level currently in 2021. Individuals extending H-1B visa status or changing employers are not subject to the cap, and the same exemption applies to individuals being sponsored by non-profit research organization or governmental research organizations, or institutions of higher education or non-profit organizations affiliated with or related to institutions of higher education. Citizens of Chile and Singapore are given preference within the visa cap and file an H-1B1 petition (as opposed to an H-1B petition). For persons who have completed a U.S. master's degree, there is an additional cap of 20,000 visas available on top of the regular 65,000 visa cap. The master's degree does not have to relate to the job offered in the H-1B petition.
Please contact our law firm for additional discussion of this category.