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The H1B visa is a non-immigrant work visa that permits U.S. employers to hire qualified foreign workers.
Both the employer and employee must satisfy precise criteria before an H1B visa petition can be approved. It’s a long, complicated petition and a difficult, tricky process. The experienced immigration attorneys at Sam Shihab & Associates help employers and employees secure the H1B visas they need. A variety of employers and scores of foreign-born workers rely on our H1B visa attorneys for the comprehensive immigration and visa-related legal services they require.
H-1B Visa, An Overview
The H1B visa program was created by the Immigration Act of 1990. It is a nonimmigrant visa that allows foreign nationals to work in a specialty occupation for up to six years. Under certain circumstances, an H-1B visa may be extended beyond six years, but foreign nationals are customarily required to live outside of the U.S. for one year to regain H1B eligibility. To qualify for an H1B visa, a foreign national must meet the educational requirements for, and be employed in, a specialty occupation by a U.S. employer.
Specialty occupations are statutorily defined as those that require 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 in the U.S. Accordingly, an H1B worker must possess at least a Bachelor’s degree, or the equivalent education and work experience, and be employed in an occupation that requires a Bachelor’s or higher degree.
Under the H1B program, employers have specific obligations related to the employment of H1B workers, many of which the employer consents to through the mandatory filing of a Labor Condition Application (Form ETA 9035) with the U.S. Department of Labor. Among other commitments assumed in the Labor Condition Application, the employer agrees to:
- H1B salary: Pay the H1B employee the required wage, calculated as the greater of the actual wage or the prevailing wage, for the full period of authorized employment;
- Offer the H1B employee benefits on the same terms as offered to U.S. employees;
- Ensure the working conditions of U.S. employees will not be adversely affected; and
- Provide the H1B employee the same working conditions as U.S. employees.
The obligation to pay the H1B salary: an H1B worker their full, required wage only ceases if the employee’s H1B status expires or the employee is terminated. The Employer remains obligated to pay the H1B salary required wage if the employee is placed in a non-productive H1B status by the employer (i.e., furlough, benching or temporary layoff). If an H1B worker is terminated prior to the expiration of their H1B status, the employer is required to offer reasonable costs for the employee’s transportation to their last residence abroad.
U.S. Employers can petition for H1B status on behalf of eligible foreign nationals. If the foreign national is in the U.S. in H1B visa status, a new employer my file an H1B transfer. The H1B worker may begin working for the new employer while the H1B petition is pending under the H1B portability rule. If the foreign national is in the U.S. in another status, they may be eligible to change status without leaving the country. In this case they must wait for approval prior to joining the employer. The H1B case status can be ascertained online by checking www.USCIS.gov
The U.S. Citizenship and Immigration Services (USCIS) requires petitions for H1B status to minimally include:
- Form I-129, Petition for a Nonimmigrant Worker and applicable H1B supplements;
- A signed, certified Labor Condition Application (Form ETA 9035);
- Evidence and/or documentation supporting the assertions made in the petition, including evidence of the foreign national’s education, the terms of employment and how the position offered qualifies as a specialty occupation; and
- The required government filing fee, ranging from $460 to $6,460.
The processing times for H1B petitions vary and frequently change, but petitions are usually adjudicated in about six months. To expedite the process, an additional premium processing fee can be paid to guarantee adjudication within 15 days. Once the employer receives an approval notice, the foreign national may apply for a visa at a U.S. consulate abroad. H1B premium processing is not always available and USCIS suspends H1B premium processing during H1B cap season and during heavy load filings.
NUMERICAL LIMITATION (H-1B CAP)
The number of new H1B visas available each fiscal year is capped at 65,000, with an additional 20,000 H1B visas available for foreign nationals with a Master’s degree or higher from a U.S. institution. Foreign nationals working in the H1B status for institutions of higher learning, affiliated research organizations, non-profit research organizations and governmental research organizations are exempt from the annual cap. The USCIS begins accepting petitions for H1B visas each year on April 1st and continues to accept petitions until the fiscal year cap has been exhausted.
Compliance Guide For H-1B Employers
H-1B employers have a myriad of obligations with regards to their H1B employees before, during, and after their employment. It is important for H1B sponsors to stringently uphold their H1B commitments to avoid potentially severe penalties from the U.S. Citizenship and Immigration Services (USCIS) and/or the Department of Labor (DOL), including debarment from the H1B program. The following is a series of H1B checklists to help employers ensure they always follow the H1B regulations.
STEP 1: OBLIGATIONS PRIOR TO HIRING AN H-1B EMPLOYEE
An H-1B employer must make certain of the following prior to hiring an H-1B worker:
- The H1B job qualifies as a specialty occupation.
- The H1B worker meets the qualifications for the H1B job, including the completion of a Bachelor’s degree or higher in a field related to the occupation and, if required, the appropriate state or local licenses.
- The prevailing wage for the occupation in the geographic area of employment has been calculated or requested from the State Workforce Agency.
- A Labor Condition Application (LCA) covering the H1B worker has been submitted to and certified by the DOL.
- Workers in the same occupation have been notified of the intention to hire an H1B worker, either by notifying the appropriate bargaining representative or, if no bargaining representative exists, by posting conspicuous notices at the place of intended employment.
STEP 2: OBLIGATIONS WHILE EMPLOYING AN H-1B EMPLOYEE
While employing an H-1B worker, H-1B sponsoring companies must always do the following to remain in compliance with H-1B requirements:
- Provide a copy of the certified LCA to the H1B employee.
- Pay the H1B salary, in other words, pay the worker the required wage which is the greater of the actual wage paid by the employer to similarly situated workers or the prevailing wage for the occupation.
- Offer the H1B worker benefits on the same basis as U.S. workers.
- Ensure the working conditions of U.S. employees are not adversely affected and provide H1B employees with the same working conditions as U.S. employees.
- Maintain a public access file for each employee in H1B status, located either at the employer’s principal place of business or the place of employment
- Keep payroll records for all employees in the H1B worker’s occupational classification.
- Notify the USCIS of any material changes in the terms and conditions of the H1B worker’s employment.
STEP 3: OBLIGATIONS AFTER EMPLOYING AN H1B EMPLOYEE
H-1B employers have continuing obligations after the termination or departure of an H-1B worker including:
- Promptly notifying the USCIS of the H1B employee’s termination.
- Providing one-way transportation for the H1B employee (not including H1B dependents) to the place of their last residence abroad if they are not staying in the U.S. to change status or complete an H1B transfer to another employer.
- Continuing to maintain a public access file for each employee in H1B visa status for one year beyond the H1B worker’s last day of employment under the LCA.
- Continuing to keep payroll records for all employees in the H1B worker’s occupational classification for at least 3 years.
STEP 4: H-1B EMPLOYER PROHIBITIONS
In addition to the affirmative obligations H-1B employers have before, during, and after an H-1B worker’s employment, H-1B employers should never engage in the following:
- Misrepresenting any information to the USCIS on the H-1B petition or to DOL on the LCA.
- Requiring or accepting repayment from the H1B employee for the H1B visa filing fees.
- Making any material changes to an H1B employee’s job duties or work location without filing a new LCA and H1B amendment.
- Charging an H1B worker a penalty for not remaining employed with the H1B sponsoring company for a certain period.|
- Placing any H-1B employee at a work location where there is a strike, lockout, or stoppage of work in the occupational classification.
- Benching an H-1B employee by failing to pay the H1B salary, which is the employee their full H-1B salary during non-productive time due to a decision by the employer.
- Employing an unlicensed H-1B employee in an occupation that requires a state or local license.
H-1B And State Licensure
Certain H-1B jobs, such as healthcare worker or teacher, may require a state or local license as part of the minimum requirements for entry into the occupation. Considering an H-1B petition must show the foreign national beneficiary meets the qualifications for the position, H-1B approval for such positions is conditioned upon the H-1B employee possessing any licenses required by the state or local authorities.
In some states, however, H-1B employees must demonstrate they are legally authorized to work in the U.S. prior to receiving a state or local license. Thus, an impossible situation arises when an H-1B employee’s state or local licensure is contingent upon having an approved H-1B petition and obtaining H-1B approval is contingent upon having received the requisite license.
TEMPORARY H-1B APPROVAL
The U.S. Citizenship and Immigration Services (USCIS) has the authority to modify H-1B procedures and temporarily approve an H-1B petition if the foreign national needs H-1B documents to obtain a state or local license. To receive temporary H-1B approval, the H-1B petition must verify to the USCIS that at the time of filing:
- All of the necessary requirements for obtaining the license were met including education, training, experience and other substantive requirements;
- The H-1B employee had applied to the state or local licensing board for the required license; and
- The H-1B petition was approvable in all other respects.
The USCIS may also grant temporary H-1B approval to foreign nationals who have not been able to obtain a social security card, but whose H-1B jobs require one.
VALIDITY PERIOD OF H-1B APPROVAL
The USCIS will temporarily approve H1B status, without the required license, for a period of one year. The one-year validity period allows the H-1B employee time to obtain the required license but does not entitle the H-1B employee to work in the profession without licensure. It is necessary for the H-1B employee to obtain the necessary license prior to working in the profession. A few examples of specialty occupations that may require a license are physical therapist, medical technician, pharmacist, teacher, and attorney.
To maintain valid H-1B status and be eligible for H1B extension, the H-1B employee must obtain the state or local license. Any H-1B extension petition that fails to show the H-1B employee has the required license will be denied. H1B case status can be ascertained online by checking www.USCIS.gov.
H-1B Dependent Employers
Employers that are considered H-1B dependent have additional obligations with regards to H-1B and U.S. workers. An H-1B dependent employer is generally one in which H-1B employees comprise 15% or more of the total workforce, but the calculation is different for employers with 50 employees or less. H-1B dependent employers must adhere to the following additional obligations:
- The H-1B employer will not layoff any similarly employed U.S. worker 90 days before or after applying for H-1B status, or an H1B extension of status for any H-1B worker;
- The H-1B employer will not place any H-1B worker at the worksite of another employer that has laid off similarly employed U.S. workers 90 days before or after the placement of the H-1B worker; and
- The H-1B employer will take good faith steps to recruit U.S. workers for the H-1B job and will offer the job to any U.S. applicant who is equally or better qualified than the H-1B worker.
If an H-1B dependent employer hires only H-1B workers that possess a Master’s degree or higher and/or are paid a minimum of $60,000 annually, the H-1B dependent employer is exempt from the additional obligations described above. It is important to note, the Employ American Workers Act categorizes all employers receiving TARP funding as H-1B dependent and requires them to fulfill the additional obligations placed upon H-1B dependent employers for any new H-1B hires.
H-1B Employer Obligations
Employers undertake specific commitments when employing H-1B workers and, by filing a Labor Condition Application (LCA) and H-1B petition, certify to the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) that they will adhere to all H-1B requirements. Consequently, H-1B sponsors must fully understand and uphold their obligations as H-1B employers.
LABOR CONDITION APPLICATION ATTESTATIONS
As part of the H-1B petition, H-1B sponsoring companies must file and receive a certified Labor Condition Application (LCA) from the DOL. By submitting an LCA, the H-1B employer is attesting to the DOL that the following conditions will be met:
- The H-1B employer will pay the H-1B worker the required wage which is the greater of the actual wage paid by the employer to similarly situated workers or the prevailing wage for the occupation in the geographic area of employment.
- The H-1B employer will offer the H-1B worker benefits on the same basis as U.S. workers.
- The H-1B employer will not allow the working conditions of U.S. employees to be adversely affected and H-1B employees will be provided with the same working conditions as U.S. employees.
- The H-1B employer will not place any H-1B employees at a work location where there is a strike, lockout, or stoppage of work in the occupational classification.
- The H-1B employer will notify workers in the same occupation of the intention to hire an H-1B worker, either by notifying the appropriate bargaining representative or, if no bargaining representative exists, by posting conspicuous notices at the place of intended employment.
- The H-1B employer will provide a copy of the certified LCA to the H-1B employee.
H-1B sponsoring companies are generally considered H-1B dependent if 15% or more of their workforce is H-1B employees (different calculations apply to employers with 50 or less employees). Additional obligations are placed upon H-1B dependent employers and, it is important to note, the Employ American Workers Act categorizes all employers receiving TARP funding as H-1B dependent for new H-1B hires.
To determine the required wage, an H-1B employer must know the prevailing wage for the H-1B job in the geographic area. Pursuant to the Immigration and Nationality Act, H-1B employers can obtain a prevailing wage by (1) requesting a prevailing wage from the State Workforce Agency (SWA) in the state where the H-1B job is located; (2) using a salary survey conducted by a trustworthy, independent source; or (3) using another legitimate source of information.
As there are several ways to determine the H-1B job’s prevailing wage, the H-1B employer must document the methodology used in their determination. It is noteworthy to mention that employers who obtain a SWA prevailing wage will be granted safe harbor protection for the wage in the event of a compliance investigation.
The H-1B rules require an employer to submit an amended H-1B petition, including new LCA, if there is a material change in the conditions of an H-1B worker’s employment. Material changes are largely undefined by the USCIS, but typically include changes in the following:
- Location of employment, including the addition of work locations, where a new LCA would be required;
- Job description or position, including lateral moves or promotions
- Number of hours worked (part-time vs. full-time); and
- Employer identity, including mergers, acquisitions and H-1B transfers.
BENCHING AND TERMINATION
H-1B sponsoring companies have an on-going obligation to pay H-1B workers their full, required wage – even during non-productive time. Failing to pay an H-1B worker their full, required wage during non-productive time is known as “benching” and is strictly prohibited by the H-1B rules. The H-1B employer cannot, based on their decision or an employee’s lack of a permit or license, place an H-1B worker in non-productive status with no pay. For example, H-1B employers cannot temporarily layoff or furlough H-1B employees without continuing to pay them their full, required wage.
Accordingly, the obligation to pay an H-1B worker their full, required wage only ceases if the employee’s H-1B status expires or the employee is subject to a bona fide termination. If an H-1B worker is terminated prior to the expiration of their H-1B status, the employer is required to provide the employee transportation to their last residence abroad. Moreover, the H-1B employer is barred from accepting reimbursement from an H-1B employee for costs associated with applying for the H-1B visa and, likewise, may not require an H-1B employee to pay a monetary penalty for leaving prior to an agreed upon date.
H-1B Visas for IT Consultants
The H-1B specialty occupation of IT Consultant is one that can present unique problems for H-1B employers, as H-1B employees typically work extensively at client sites. A new H-1B must be filed with USCIS prior to making any material changes in the terms of an H-1B worker’s employment (i.e., changes in work location that would require a new LCA). However, a close examination of the H-1B job, especially in the case of H-1B consultants, is recommended when determining the steps required for maintaining H1B visa and LCA compliance.
ROVING EMPLOYEES AND H-1B EMPLOYER RESPONSIBILITIES
The H-1B employer (the H-1B sponsoring company) has specific obligations with regards to roving H-1B employees, such as IT Consultants. Namely, the employer must retain the right to control the roving H-1B employee, ensure and document that the H-1B employee is maintaining lawful H1B visa status, and ensure the H-1B employee has actual work to perform (the employment cannot be speculative).
EMPLOYERS AS AGENTS AND SPECULATIVE WORK ASSIGNMENTS
The H-1B employer must be able to demonstrate they are the actual employer and not merely acting as an agent for the H1B worker. Typically, a letter from the client, as well as copies of any contracts between the parties, can provide sufficient evidence of control.
In addition, at no time can the H-1B employee be benched due to lack of work and, thus, the H1B employer is responsible for paying the H-1B employee the required wage, as stated in the LCA, even if no work is available.
LCA COMPLIANCE REQUIREMENTS
When determining whether a new LCA is required, the H-1B employer must first establish whether the temporary work location qualifies as a new “worksite” or as a “non-worksite” pursuant to DOL regulations. The DOL considers the following categories to be “non-worksites” and, therefore, does not require the filing of a new LCA, if:
- The occupation is “peripatetic” or one that, by its nature, requires frequent travel to client sites or other locations, and the H-1B employee does not spend more than 5 consecutive workdays on any one trip;
- The H-1B employee occasionally travels to alternate worksites but works substantially at the permanent work location specified in the LCA. This type of travel can be recurring, but the H-1B employee cannot spend more than 10 consecutive workdays on any one trip; or
- The temporary transfer to a different work location is for employee development activities, such as conferences, trainings, seminars, or meetings. However, this category does not include H-1B employees who provide trainings or seminars at alternate work locations on a regular basis.
If the H-1B employee’s temporary placement at an alternate worksite does not fall into any of the “non-worksite” categories above, the H-1B employer may still be excused from filing a new LCA if the transfer qualifies as a short-term placement.
An H-1B employer may place an H-1B employee on one or more short-term work assignments at locations not specified in the LCA. The short-term work assignments, collectively, cannot exceed a total of 30 days in a one-year period (either the calendar year or employer’s fiscal year) and the following conditions must be met:
- There is not a strike, lockout, or labor dispute in the same occupation at the temporary work location;
- The employer continues to pay the H-1B employee the required wage, which is the greater of the H-1B prevailing wage at the permanent work location or the actual wage paid by the employer to similarly situated workers; and
- The employer must pay for the H-1B employee’s actual costs of travel, lodging, meals and incidental expenses for weekdays and weekends.
Moreover, an H-1B employee may work at locations not specified on the LCA for up to 60 days, collectively, in a one-year period if:
- The H-1B employee is maintaining a permanent office or workstation at the work location indicated in the LCA;
- The H-1B employee spends a substantial amount of time at the permanent work location during the one year period; and
- The H-1B employee’s a primary residence is in the area of the permanent work location (i.e., personal mailing address, bank accounts, driver’s license, residence of H-1B dependents).
AMENDED H-1B PETITION AND NEW LCA
If an H-1B employee’s short-term work assignment is going to exceed a total of 30/60 days in the one-year period, the H-1B employer must file an amended H-1B petition with a new LCA prior to the exhaustion of the 30/60 day limit. Likewise, if the H-1B employee’s temporary work assignment does not fall under one of the exceptions described above, the H-1B employer must file an H-1B amendment including a new LCA.
H-1B Request for Evidence
To obtain H-1B status, a U.S. employer must submit an H-1B petition to the U.S. Citizenship and Immigration Services (USCIS). The purpose of the H-1B petition is to prove the H-1B employer has a legitimate opening in a specialty occupation and that the foreign national beneficiary has the qualifications to fill the position. If during H-1B processing the petition is found to lack the required initial evidence or the evidence submitted fails to establish eligibility, the USCIS may (1) deny the petition, (2) issue a Notice of Intent to Deny (NOID) or (3) issue a Request for Evidence (RFE).
An RFE is sent to the H-1B sponsor as a written request for information. It will indicate the evidence that the USCIS adjudicator needs and is intended to provide the H-1B sponsor with notice of the evidentiary deficiency and adequate time to respond. The USCIS can assign different time periods for responding to an RFE, but the maximum amount of time to respond cannot exceed 12 weeks. Moreover, H1B extensions of time will not be granted and all information must be submitted in one filing.
It is recommended that the H-1B sponsor completely respond to every RFE question and include the RFE notice in the response. The USCIS will grant the foreign national H-1B visa status if the RFE response sufficiently addresses the petition’s alleged deficiencies.
The H-1B sponsor may also submit a partial response and request a decision based on the record or withdraw the H-1B petition. If the H-1B sponsor does not respond by the required date, the USCIS can (1) deny the petition as abandoned, (2) deny the petition based on the available record, or (3) deny the petition for both reasons. A new H-1B petition can be filed, with new H-1B fees, if the H-1B employer withdraws the original petition or it is denied due to abandonment. However, the facts and circumstances surrounding the original petition may be considered when deciding the new H-1B petition.
REQUIRED INITIAL EVIDENCE
The information and documentation requested in each H-1B RFE is based on the specific evidentiary deficiencies of the petition submitted. The initial evidence an H-1B petition should contain must prove the following to the USCIS:
- A Labor Condition Application has been filed and certified by the Department of Labor.
- The position offered to the foreign national is a specialty occupation.
- The foreign national has the degree required for the position.
- The foreign national holds any licenses or permits required for the occupation in the state in which the occupation will be performed.
- The terms of the H-1B job, including copies of any contracts or summaries of any oral agreements between the H-1B employer and foreign national.
The USCIS may desire additional information regarding the foreign national and/or the H-1B employer, including background and financial information about the employer, the foreign national’s current immigration status, and information about any H-1B dependents. The USCIS will also issue an RFE if fraud or other illegalities are suspected.
Interplay between H-1B And Immigrant Visas
DUAL INTENT DOCTRINE
Foreign nationals seeking to establish permanent residence in the U.S., by definition, have immigrant intent. Certain nonimmigrant visas including the H-1B visa, though, allow for dual intent. The dual intent doctrine provides that foreign nationals holding certain nonimmigrant visas can demonstrate future immigrant intent while present in the U.S. without invalidating their nonimmigrant status. Thus, H1B visa holders can lawfully maintain their nonimmigrant status while completing the H-1B-to-green card process.
EMPLOYMENT-BASED IMMIGRANT VISAS
Pursuant to the Immigration and Nationality Act, approximately 140,000 employment-based immigrant visas are available each year. The visas are issued based on the five employment preference categories outlined below:
- The first preference category is for priority workers including (1) persons of extraordinary ability in the sciences, arts, education, business, or athletics; (2) outstanding professors and researchers; and (3) certain multinational executives and managers.
- The second preference category is for professionals with advanced degrees or persons of exceptional ability in the arts, sciences, or business.
- The third preference category is for skilled workers, professionals with Bachelor’s degrees and other workers.
- The fourth preference category is for special immigrants including, but not limited to certain broadcasters, employees of the U.S abroad, foreign medical graduates, and religious workers.
- The fifth preference category is for employment creation investors or foreign nationals who invest $900,000 to $1,800,000 in a commercial enterprise in the U.S. and create at least 10 new full-time jobs for non-family member U.S. citizens, permanent residents or other lawful immigrants.
H-1B immigration primarily involves the second and third employment-based preference categories and, therefore, requires a labor certification prior to filing the I-140 Immigrant Petition for Alien Worker in the H-1B green card process.
To hire an H-1B employee to work permanently in the U.S., the H-1B employer must typically obtain a labor certification from the Department of Labor (DOL). Labor certification involves testing the U.S. labor market for qualified U.S. workers available to fill the H-1B job. The H-1B employer must conduct recruitment for the foreign national’s permanent position, including setting forth the minimum requirements for and advertising the position pursuant to DOL regulations.
The results of the H-1B employer’s recruitment are reported to the DOL through the filing of Form ETA 9089. Generally, the DOL will certify the employer’s ETA 9089 application if the employer has adequately shown the minimum requirements for the position are not too restrictive, U.S. workers were recruited for the position in good faith and there were no qualified U.S. workers available or willing to accept the position.
H1B EXTENSIONS BEYOND THE SIXTH YEAR
A pending or certified permanent labor certification may entitle a foreign national to H1B extension beyond the six-year maximum. Pursuant to the American Competitiveness in the Twenty-First Century Act, foreign nationals under the following circumstances are entitled to H-1B extensions, in one-year increments, beyond the six-year maximum:
- Foreign nationals for which a permanent labor certification application was filed and has been pending for 365 days or more; or
- Foreign nationals for which a permanent labor certification application has been certified and, within the validity period of the approved labor certification, an I-140 Immigrant Petition for Alien Worker has been timely filed.
Moreover, foreign nationals with an I-140 approval that are eligible to adjust to permanent resident status but for per country limitations on immigrant visas are eligible for three-year H1B extension until the time their green card application has been adjudicated.
Hire A Skilled H1B Visa Law Firm
Advice from a good immigration lawyer is imperative for companies sponsoring H-1B visa holders. The knowledgeable immigration attorneys at Sam Shihab & Associates are fully able to help foreign nationals as well as their employers by providing sound legal advice and services. Our services include reviewing visa petitions to make sure they are accurate and thorough to ensure the best possible outcome for your particular situation. We also provide workers and employers with all-inclusive legal services regarding any immigration issue.
Our offices are in Dublin and Columbus, Ohio, Troy, Michigan and Irving, Texas, but we also work with clients from all parts of the world. From anywhere in the world, feel free to phone or email one of our skilled attorneys at Sam Shihab & Associates, so we can talk about your specific visa needs and options.